Citation: (1963) 15 DLR 533, (1962) 14 DLR (SC) 273 (1962) PLD(SC) 476, (1959)11 DLR(WP) 36 (1958) PLD(Lah.) 1042, (1983) 35 DLR (AD) 203, (1986) 38 DLR (AD) 188, (1983) 35 DLR (AD) 203, (1982) 34 DLR 113, (1982) 34 DLR 23, (1977) 29 DLR 20, (1963) 15 DLR (SC) 15
Subject: Constitution
Delivery Date: 2018-08-28
2. Disobedience of orders or processes of Court.
-Injunction order of the Court, disobedience of person not party to the proceeding in which the injunction order was passed, not guilty of contempt of Court, unless he aids or abets in the infringement of the order.
An injunction order (in the present case) was passed by the High Court restraining the opposite parties to the proceedings from interfering with the petitioners' possession of the cattle market (the subject-matter of the proceeding) till the disposal of the matter by the Court.
Opposite party No. 4 was not party impleaded in the proceeding but he was aware of the Court's order and in spite of that collected tolls from the disputed cattle market with full knowledge of the Court's order staying further proceedings. Question arose, whether a person who was not a party to the Courts proceedings and the injunction rule can be committed for contempt of Court for disobeying the order of injunction.
Held: Inasmuch as the opposite party No. 4 was not bound by the injunction he cannot be held liable for contempt, on the principles laid down by the Privy Council in the Kuchwar Line & Stone Go's case (AER 1938 P.C. 295). Unless a person aids or abets another person bound by the Court's injunction order, in disobeying the order of injunction, the contempt proceeding against such person will not lie. In the present case so far as the person bound by the Court's injunction order were concerned, none of them disobeyed the order and the question of abetting the infringement of the order did not, therefore, arise.
Aftabuddin Barker Vs. Qazi Azhar All (1963) 15 DLR 533.
-Failure to obey the process of Court does not amount to contempt unless something more as contumacious disregard of the Court's order is established-Circumspection to be observed when taking contempt proceedings. In the absence of any proof of a contumacious disregard of an order of the Court no committal for contempt is possible. Respect due to a Court itself is owed also to its processes but mere failure to obey any process of the Court, when other methods of enforcing the process are available, does not amount to a contempt of Court. Unless the person served with the process has done something more to exhibit a disrespect for the process of the Court, as for example, used insolent or indecent expressions or violent or profane language on being served with such a process or assaulted, or ill treated the process server.
It is of the utmost importance that a committal for contempt should not be made unless the disobedience shown is of such a serious nature as to indicate that the alleged contemner is deliberately out to flout the order of the Court and to treat with some degree of contumaciousness. Bahawal Vs. State .
(1962) 14 DLR (SC) 273 (1962) PLD(SC) 476.
-If a person disobeying High Court's order delivers property not ordered to be delivered in collusion with persons to whom property was delivered that amounts to a contempt. Nizam Din Vs. Muhammad Bux
(1959)11 DLR(WP) 36 (1958) PLD(Lah.) 1042.
-Facts which constituted contempt in the present case-Court's order is found to have been disregarded.
Mahbur Rahman Sikder Vs. Mujibur Rahman Sidker (1983) 35 DLR (AD) 203.
-Executive arm of the Government will not be allowed to attack and deface the honour.dignity, majesty and independence of the judicial organ of the State.
Adbul Karim Sarkar Vs. The Stale (1986) 38 DLR (AD) 188.
-Contempt of Court-Maintenance of the Court, dignified bearing in the face of unbecoming conduct, etc. Abdul Karim Sarkar Vs. The Slate (1986) 38 DLR (AD) 188.
Violation of the order is found to be deliberate and intentional. But in the facts and circumstances in the present case violation of the order is found .to be deliberate and intentional. It is not a single act or omission for which the respondent has been charged. There is a series of acts of the respondent from 21.7.82 to 31.12.82. i.e. for about six months, which are involved in the allegation of contempt. It is not the case of the respondent that he misunderstood our order or there is ambiguity therein, particularly about certificated bills as a precondition for preparation of cheques to withdraw money. Rather, he himself stated in his reply to the petitioner's suggestion for a discussion that the Court's order was very clear and unambiguous which could be followed without any difficulty and that it is the petitioner who tried to complicate the matter.
Mahbubur Rahman Vs. Majibur Rahman (1983) 35 DLR (AD) 203.
—Resident Magistrate and Sub-Divisional Officer found guilty of contempt of court and sentenced to imprisonment till the rising of court and to pay a fine of Taka 300.00 each.
We find no 'difficulty in holding that both the respondents deliberately violated the order passed by the High Court Division on 8.11.78 stay ing'all further proceedings of Sherpur P.S. Case No. 14 dated 26.10.78 and as such both 'of them are guilty of committing contempt of this Court. Surendra Mohan Shaha Vs. Government of Bangladesh (1982) 34 DLR HO.
--Sub-divisional Officer found guilty of contempt of court by the High Court Division-Sentence awarded is imprisonment till the rising of the court.
Momtazuddin Ahmed Vs. Abdur Rashid Khan (1982) 34 DLR 113.
Contempt of court—disobeying court's order-Application of law embodied in the Penal Code as sn appropriate punishment. A proper and judicious application of those penal clauses would have some deterrent and beneficial impact upon the public servant who chooses to disobey the orders -of the Court or the law.
Punishment under the Contempt of Courts Act, is not, so far as the present delinquent is concerned, stringent or deterrent enough for such glaring cases of wilful disobedience by a public servant.
Southern Fisheries Ranong Corps. Vs. Kingfisheries Ind. Ltd. (1982) 34 DLR 23.
-Public servants like any other citizen are not only duty bound to obey the law and the orders of the Court but it is their constitutional obligation to do so, inasmuch as the Constitution enjoins upon all authorities, executive and judicial in the Republic, to act in aid of the Supreme Court.
Southern Fisheries Ranong Corps. Vs. Kingfisheries Ind. Ltd. (1982) 34 DLR 23.
-Superior Courts order should be duly respected by all concerned. Sk. Abdul Bari Vs. Abdus Samad Bhuiya (1977) 29 DLR 20.
3 . Interferencewith administration of justice-Pending Proceedings.
--Conduct that tends to bring the administration of law by a Court into disrespect amounts to a contempt.
The categories of contempt are too manifold that it is not possible to attempt an exhaustive classification of what may or may not constitute a contempt, but generally speaking any conduct that tends to bring the administration of law by a Court into disrespect or to contumaciously disregard its processes or to interfere with or prejudice parties or their witness during the litigation amounts to a contempt.
Md. Samirullah Khan Vs. State, (1963) 15 DLR (SC) 150.
—Test applicable to ascertain—is whether a publication has interfered with .the course of justice. Held: The real test in cases of this nature is whether the publication complained of tended or was calculated to interfere with the course of justice in any substantial or real manner, either by prejudicing a fair trial or by prejudicing the minds of the public against persons concerned as parties in causes before the cause is finally heard. In determining this effect neither the intention of the printers or authors nor the truth or falsity of the allegations contained in the publication complained of, is of any consequence, for, what a Court of law is concerned with is that it should not permit anyone to poison the fountain of justice before it begins to flow.
Attorney-General of Pakistan Vs. Abdul Hamid Sheik, (1963) 15 DLR (SC) 96.
--It is not necessary that the words used should actually obstruct or interfere with the course of justice and the due administration thereof but that it is sufficient that they should be calculated to have thateffect.
-. 'Calculated' means that the offending words should be of a nature or character proper orilikely to obstruct or interfere in that matter.
--The words that during the Muslim League' the judiciary had been influenced by the Ministry amount to gross contempt of Court.
State Vs. A. Rashid, (1958) 10 DLR 568 (1959) PLR 716.
—Anticipating the judgment of a Court that had been reserved is a serious matter even though the ultimate order of Court passed by the Judge in a particular case is to the same effect as was anticipated inasmuch as the ultimate order could have been otherwise, as the Judges were at liberty to change their opinion till the delivery of the judgment regardless of the observations made by them during the hearing.
Abdus Salam Vs. State, (1958) 10 DLR (SC) 176 (1958) PLD (SC) 528.
-It was within the rights of the Munsif, if he did not agree with the trying Magistrate for any departmental action against the process-server, to record his own comments on the findings of the Magistrate, in his report to the District Judge. If he did not agree with the trying Magistrate, he could offer his own comments and his opinion on the findings. Although the remarks were strong they were made by the Munsif in the discharge of his duty as a Sub-Divisional Munsif and, as such, it could not be held to impede the due course of administration of justice and determine the public confidence in the administration of law.
Crown Vs. S.C. Royl(19tW7 DLR 399.
-Any conduct which tends to bring authority of law into disrespect or disregard or to interfere with or prejudice parties, etc., constitutes contempt of Court. (1949) I PLD (Lah.) 392.
-Court should not take cognizance at instance of private party unless that party satisfies the Court that matter published tended substantially to interfere with due course of justice. (1953) 5 PLD (Lahore) 579.
-Establishing truth of allegations made against a Judge is no defence to a charge of contempt of Court. A libellous statement which amounts to interference with Courts of justice amounts to contempt even though the defendant is prepared to justify the libel. Crown Vs. Abdur Rahman 2 PCR 64.
(Per Kaikaus, J.)—Superior Court should be absolutely protected from attack.
M. H. Khondakar Vs. State (1966) 18 DLR (SC) 124.
--Contempt of Court for breach of Court's prohibitory order—Knowledge of such order —Wilful disregard to the order will outweigh proof of actual service of the order.
For justifying a committal for breach of a prohibitory order it is not necessary to actually prove service of the order upon the party. But the contention cannot be accepted that any kind of report of such an order will be sufficient to fix the party with notice of such an order. In a proceeding of a criminal or quasicriminal nature it is a fundamental rule that before a person can be saddled with the penal consequences of a breach of an order he must at least be shown to have had some definite and authentic information of the order which he is alleged to have violated. What amount of proof will be sufficient to fix a person with such knowledge will of course depend on the facts and circumstances of each case but this can safely be stated that the mere verbal assertion of a rival party can hardly be regarded as sufficient for this purpose. When there is clear proof of a wilful disregard of the order proof of actual service of the order is not necessary to assert the claim of knowledge of the person saddled with the yenal consequences. Syed Ahmad Shah Vs. The, State. (1967) 19 DLR (SC) 103.
-Functions of the decentralised administration at the thana level-surveyed.
Munsifs and Magistrate working in the new Upa-zilas functions independently of Upa-zila Nirbahi Officers. Telling the Munsif-Magistrate in open court (by U.N.O.) is gross interference with the administration of justice and constitutes clear contempt of court.
The State Vs. Abdul Karim Sarkar(1985)37DLR26.
-The confidence in Courts of justice which the public possess must in no way be tarnished, diminished or be wiped out by contumacious behaviour of any person. The essence of contempt is an action or inaction amounting to an interference with or to obstruct due administration of justice.
Uoaizem Hossain Vs. Stale (1983) 35 DLR (AD) 290.
4. Jurisdiction.
Power of committal given to superior Court--a necessary power given. The power of committal for contempt is given to such superior Courts in order that they may swiftly and summarily perform one of their most important duties which is to protect themselves against wilful disregard or disobedience of their authority. It is necessary to arm the Courts with powers to defend themselves against every attack upon the position which they occupy in the administration of justice. Confidence in their capacity as such can be allowed to be affected only at the risk of dissolution of the entire system of Courts. Edward Snelson Vs. Judges II. C. of Lah. (1964) 16 DLR (SC) 535.
--What constitutes contempt of Court-dictum of Wills, /.-It is now-settled that all publications which are calculated to or have the tendency either to excite prejudice against parties or their litigations while it is pending or to interfere with the due course of justice, will constitute contempt. The reason for this as stated by Wills. J. in the King Vs. Parke (1903-2KB 432, "is because their tendency and sometimes their object is to deprive the Court of the power of doing that which is the end for which it exists, namely, to administer justice duly, impartially, and with reference solely to the facts judicially before him."
Advocate-General Vs. Sabir Ahmed (1963) 15 DLR (SC) 355.
-High Court's power to punish an Advocate under the Letters Patent for contempt of the Court does not extend to cases where such contempt is committed before the Federal Court. (1953) 5 DLR (FC) 216 (226).
-Jurisdiction of the High Court to deal with contempt committed before the Federal Court. There is no warrant for the view either in authority or in well-recognised principles that the High Court cannot take action against an Advocate in respect of something done or intended to be done before the Federal Court which brings the High Court into contempt. In the matter of 5. M. Hoq, 5 DLR(WPC) 88 (94).
[This judgment has been over-ruled by the Federal Court decision reported in 5 DLR (FC) 216]
Contempt proceedings, nature of Contempt proceedings are in the exercise of criminal jurisdiction in a broad sense and consequently no appeal would lie under Clause 10, Letters Patent (Lahore) [same as Clause 15, Letters Patent, (Calcutta)]. (7956) 8 DLR (WPC) 39.
—Punishment for contempt of Courts falls within the inherent jurisdiction of the Court and no appeal lies against such order of punishment. (1956) 8 DLR (WPC) Karachi 50.
—Committed by Advocate in India of an Indian Court-Advocate on the rolls also of Lahore High Court in Pakistan.= Only the Lahore High Court was competent to take disciplinary proceedings against the lawyer concerned. 5 PLD (Lahore) 244 (245)
5 . Lawyer
Advocate on charge of contempt. Although proceedings in chambers of Judges are not invested with the full formality of those that take place in Courts, yet the circumstance in which and the attitude with which an interruption was made by the Advocate in the case even in chamber proceedings are factors which may deprive the interruption of all innocence in the light of contempt of the Court's authority and dignity.
An offence in this respect shall necessarily invite the grave penalty of judicial conviction and a fine supported by imprisonment in default but in the present case having regard to the fact that the Advocate concerned was young the conviction and sentence was set aside and in their place an admonition substituted to the effect that in all his future dealing with Court, he should never forget that however important in substances or principle a matter may be, which he is placing before the Court, he should never forget that his own dignity as a lawyer obliges him to place it before the Court in the manner of a submission, couched in the traditional language of courtesy that is due to the Court.
Rashid Murtaza Qureshi Vs. State (1965) 17 DLR (SQ608
Duty of the members of the Bar towards the Courts. Members of the legal profession are under no duty to their clients to make grave and scandalous charges either against Judges or the opposite parties on the mere wish of their clients. They are not puppets compelled to obey the dictates of their clients where matters of good faith and colourable conduct are concerned. They are responsible to the Court for fair and honest conduct of a case. Lawyers should exercise great care and caution in drafting and pleading in Court an application which contains allegations reflecting upon the integrity of the Court. State Vs. A.Gafur Bhuiya (1961) 13 DLR 851.
-Advocate acting as Official Receiver writing to Government to influence the High Court in regard to his functions as Receiver is in serious contempt.
S. A. Maquith Chowdhury Vs. State (1959) 11 DLR (SC) 105
(1958) PLD (SC) 425.
—Advocate's duty-An Advocate should act with regard to the responsibility of high office and must not use instruction which are derogatory and which could be verified.
Md. Ayub Khan Vs. Custodian of Evacuee Property (1963) 15 DLR (WP) 93.
Duty of members of the Bar towards the Courts.
-Members of the Bar should remember that their primary duty is to the Bench and then to their clients and even if they have instruction from the clients tending to cast reflection on the Presiding Officer, they should be very careful not to put those statements in any petition.
State Vs. Delwer Hossain (1960) 12 DLR 613 (1961) PLD 157.
—Applications or pleadings containing scandalous matters—Lawyers intentionally and deliberately Scandalizing the Court-sentence of punishment—party guilty of gross contempt of Court-lawyers duty to uphold Court's prestige and not to lower it. (Per C.J.)
State Vs. Noman (1964) 16 DLR 393.
-Advocates enjoy absolute privilege on the general principles dictated by public policy that they should be allowed full liberty, without fear of any civil or penal action in pressing and pursuing the cause of their clients before Courts and Tribunals.
Advocate qua Advocate cannot claim any special privilege-Judges protected, Advocate's privilege cannot go to the extent of scandalising Courts-such defence is unavailable.
State Vs. Noman (1964) 16 DLR 393.
-No privilege of any kind can be claimed by Advocates in proceedings for contempt of Court even if the acts claimed of were done by them with reference to and in the course of, enquiry before a judicial tribunal. This view is all the more fortified by Article 123 of the Constitution which confers on the Supreme Court the power to punish any person for contempt of Court. Judges are protected from civil or criminal process if they, in the discharge of their judicial duty, act in good faith. As Advocates are officers of the Court they are not entitled to a provision greater than the protection available to Judges. Professional Privilege is conceded to Advocate only on the ground of public policy, so that they may pursue their client's cause without any fear of penalty.
Advocates in the discharges of their duty, must act in good faith as is required by the 9th Exception to section 499 of the Penal Code and must not say or do anything which might cause harm to the Court itself as an institution.
State Vs. Noman (1964) 16 DLR 393.
Plea of privilege by a lawyer.
-It was argued that if a plea of privilege is available in a civil action for libel, it should not be denied in a case of contempt of Court. - Held: (Satter, J.) There is a fundamental difference between the two proceedings and the • difference is based on consideration of public policy. To allow such a defence would amount to cutting at the roots of dignity and authority of the Courts of Justice. Such a plea must be rejected, not to protect an erring Judge but ninety nine others who would be victims of prosecution at the instance of disgruntled persons, though there can be no honest complaint against them. This is also necessary to preserve the awe, authority and position of the judiciary. An act which strikes at the root of public confidence in Court of law destroys the very fountain of justice and this accounts for the extraordinary power of punishing contempt of Court summarily and also by persons who are themselves the prosecutors.
Stale Vs. Noman (1964) 16 DLR 393.
-Counsel's difficult task in presenting his client's case before the Federal Court in exposing errors of the High Court-Accentuation of the difficulty to be avoided in the interest of justice-words, however strong, can be used if thereby to advance cause of justice-words to belittle the judge qua judge to be avoided provided the criticism is advanced with the single purpose of aiding in the due dispensation of justice-no words employed can be too strong, if, in choosing them, it is also borne in mind that so far as possible, no words should be used gratuitously to bring into disrepute or belittle the judges or the Court whose work is being criticised. (1953) 5 DLR (FC) 216 (226).
-Jurisdiction of the Federal Court is exclusive to decide, in respect of a counsel's acts performed before it, whether it has been guilty of contempt of the High Court on defaming it.
S. M. Huq Vs. Hon' ble Judges of the High Court (1953) 5 DLR (FQ216.
[This overrules the dictum of the Lahore High Court in the case reported in 5 DLR (WPC) 88 (94) that the High Court is competent to take action against an Advocate in respect of something done before the Federal Court, which brings the High Court into contempt.]
—In case of genuine apprehension, it is the primary function of the litigant and the lawyer, to openly state it.
M. H. KhondakecrVs. Slate (1966) 18 DLR (SC) 124. -
Duty of the lawyers engaged to conduct the case in weighing carefully any statement made to the Court which may scandalise the Court. M. H.
Khondakar Vs. Stale (1966) 18 DLR (SC) 124.
-Mutual responsibility between the Bench and the Bar to ensure even flow of justice never to be forgotten.
The Bar and the Bench are complementary to each other. Any propensity by any one side to carry its temporary ruffled feelings against the other to an unreasonable length destroys the moral foundation of both the two institutions. In the most disrespectful and contemptuous words possible the contemncr Advocate has poured scorn on the learned Additional Sessions Judge blurting out defamatory and scandalous allegations against the court and thwarting the administration of justice itself, but decency and good sense required the contemner Advocate to rush to the learned Additional Sessions Judge himself at the earliest possible opportunity to express his regret and remorse over his utterances and to hold out a solemn promise to him that he would in future never behave in the same manner,
Slate Vs.Nazrul Islam (1985) 37 DLR 200.
-Lawyers responsibility who are an integral part of the court to uphold the dignity and prestige of the court. It is of utmost importance for all concerned to remember that judiciary is upholder and preserver of the liberties and rights of the people and nothing should be said or done to lower the judiciary in the estimation of the people or to obstruct the administration of justice: more so by the Lawyers, who are the integral part of the Court and it is their dilty to uphold the dignity and prestige of the Court and not to lower it.
State Vs. Abdul Majid (1981) 33 DLR 220.
—Bar's responsibility in the matter upholding the dignity of the Court, not of individual Judges who constitute the court.
Professional misconduct amounting to contempt of court-Members of the Profession's responsibility.
Absence from the Court in disregard of the Court order and for false statement regarding illness and for sending letter direct to the court through the Deputy Registrar.
The State Vs. Moazzcm Ilossain (1983) 35 DLR 266.
6.Subjudice- pending proceedings.
-Pending proceedings before (Supreme) Court—Expression of opinion over a law point in respect of such proceedings and the plea of ignorance. It is not possible to accept contention that mere expression of an opinion on question of iaw which is subjudice cannot amount to a contempt of Court. It is not possible to accept the contention that in law knowledge of the pendency of the proceedings is necessary. All that is necessary to show is that a proceeding was actually pending at the time or was imminent.
Advocate General Vs. Shabir Ahmed (1963) 15 DLR (SC) 335.
-Pending also includes and extends upto the period of limitation for filing appeal, etc. There is abundant authority for saying that a case is pending upto the time that the limitation for filing an appeal from the said cause has not expired.
Advocate General Vs. Shabir Ahmed (1963) 15 DLR (SC) 355.
7. Misrepresentation of judgment.
-Anticipating the judgment of a Court that had been reserved is a serious matter even though the ultimate order of Court passed by the Judge in a particular case is to the same effect as was anticipated inasmuch as the ultimate order could have been otherwise, as the Judges were at liberty to change their opinions till the delivery of the judgement regardless of the observations made by them during the hearing (26 E.R. 683 followed)
Abdus Salam Vs. State (1958) 10 DLR (SC) 176=(1958) PLD(SC) 528.
-Misrepresentation of proceedings of the Court or even anticipation of the order which the Court might make is a species of contempt.
State Vs. Editor, Pakistan Observer (1958) 10 DLR 255.
-A litigant has every right in circumstances which shakes his confidence about getting justice at the hand of a superior Court to raise his objection.
M. II. Khondakar Vs. State (1966) 18 DLR (SC)
124.
8. Newspaper comment.
—Newspaper comments, when have the effect of interference with the course of justice. If an article read reasonably and as a whole was calculated or had the tendency to prejudice mankind against one or other of the parties involved in a proceedings in a Court of law, will amount to an interference with the course of justice, for, the question in these cases is not as to whether the publication has, in fact interfered or not or as to what was the intention of the author and /or publisher, but whether it has the tendency to produce such prejudicial effect. The principle upon which this type of contempt is punished is to keep the streams of justice unsullied so that parties against whom litigations are pending in Court of law should get fair trial from the Court and not be subjected in advance by a "trial by newspapers".
Saadat Khialy Vs. State & ors. (1963) 15 DLR (SC) 81.
-Editors' responsibility-It is of no avail to the editor of a newspaper to plead ignorance of the publication for, in law he is responsible for every thing that is printed in his newspaper.
Advocate General Vs. S. Ahmed (1963) 15 DLR (SC) 355.
-It is a misconception to think that publications of briefs, pleadings or petitions even without comments can, in no circumstances, amount to a contempt. Such publications, if onesided, may well have the undesirable effect of prejudging the party whose version is not also placed before the public.
Saadal Khialy Vs. State (1963) 15 DLR (SC) 81.
--In the case of newspapers, the editor, the manager, the printer, the publisher as also the staff reporter, who is the actual author, are legally responsible in the fullest measures for the publication made therein. It was clearly the duty of editors and the publishers to see that whatever is published in their newspaper is a true and authentic report of proceedings in a Court of law. It is incumbent on the editor, publisher and printer of the newspapers to verify the correctness before they publish and print news about any Court proceedings and that they should be very careful before publishing any such things and should guard its security. Saddat Khialy Vs. State (1963) 15 DLR (SC) 81.
-Newspapers publishing the contents of an application filed in the Supreme Court (containing sensational matters) even before the application was taken up for hearing are guilty of contempt.
Attorney General Vs. A Hamid (1963) 15 DLR (SC) 96.
—The effect of the publication complained of in the present case was to cause a grave and serious interference with administration of justice, for the allegations made in the petitions of Shabir Ahmed, J., as published in the newspapers clearly calculated to lead to the inference that the Judges constituting the Special Bench hearing the appeal has not decided the case of Syed Ali Newaz Gardezi with fairness and impartiality.
Attorney General Vs. A. Hamid (1963) 15 DLR (SC) 96.
-Both parties to a cause in a matter pending in a Court of law, should be heard at the same time and in the presence of each other by an unprejudiced tribunal. This object will be entirely frustrated if newspapers are permitted to print extracts of pleadings in advance, for, it would constitute a serious interference with what is Court's duty, the decision of the pending case.
Attorney General Vs. A. Hamid (1963.) 15 DLR (SC) 96.
-Reporter of newspaper taking down the speech of the contemner not an accomplice. A reporter of a newspaper who took down the speech of contemner which is the subject-matter of the contempt proceeding and which the contemner contended was not correct report of speech is not in the position of an accomplice and a Court cannot refuse to accept his evidence on the plea that it cannot do so unless it is corroborated in material particulars by independent evidence. State Vs. Abdur Rashid (1958)'10 DLR 568
(1959) 9 PLR 716.
--Editors and printers-^role of want of care. Editor, Manager, Printer and Publisher of a newspaper must accept the fullest responsibility for every thing that is,published. State Vs. Abdur Rashid (1958) 10 DLR 568 (1959) 9 PLR 716.
--Intention to cause prejudice not a necessary ingredient--If a publication is calculated, that is, is of nature of character as is likely to lead to that effect, that would be contempt. The word 'calculated' has two meanings. One is 'devised with forethought' and the other is 'of a nature of character proper or likely to'. The word 'calculated' used by the Privy Council in the case of Devi Prasad Vs. Emperor in the sentence calculated to obstruct or interfere with the course of justice and the due administration of the law had been used in the latter sense. Abdus Salam Vs. State (1958) 10 DLR (SC) 176 (1958) PLD (SC)528.
-Article in a newspaper criticising judgments of a High Court Judge and describing him as time-server and his decision as expedient in the existing circumstances-Article inciting people to turn the Judge out of Pakistan-amounts to contempt of Court. 1 PLD (Lahore) 410.
-Reference in newspaper head-line to grounds in revision petition that the act of Magistrate was against law-no contempt. 5 PLD (B.J.) 79.
-Unnecessary use of words in newspaper report of Court proceedings tending to show that the Court's order in favour of a party was in consideration of such party being an officer-bearer of a political organisation may amount to contempt object, motive or intention with which such words were used, not material in an action for conlempt. 5 PLD (BJ) 79.
-The press as a rule have no right to make the correctness of a decision of a subordinate judicial officer a public issue by imputing motives to the officer concerned. The course for the Press where they have reasons to believe that a dishonest judgment has been delivered is to approach the appropriate authority and ask for a regular inquiry against the officer concerned. Crown Vs. Editor of the Zaminder. 2 Pak. Cr. Reporter 37.
Scandalisation of the Judges by News Editor.
—The News Editor sought justification for printing matters scandalising the judges on the ground that he had to do it upon positive instruction of his superior-in-office. Held: A subordinate officer is not bound as a part of his duty to carry out the illegal orders of his superiors and he cannot escape liability on that score. The Slate Vs.Ezaz Mahmood (1971) 23 DLR (Lah)41.
-Attempt to justify publication scandalising the judges constitutes worst contempt and the contemner not permitted to offer evidence in justification of his allegation.
,
-Scandalization of the Judges-Such offence has to be met with condign punishment-Mitigating circumstances when the offender without any defence throws himself at the mercy of the Court in contrition of the offence committed. In the matter of Contempt Proceedings against Arif Nizami, (1971) 23 DLR(SC) 1.
—Any publication in newspapers which is calculated or has the tendency to prejudice the public
mind in favour of or against a party to a cause is a contempt of court. M. A. Awal Vs. Ehtesham Hyder (1976) 28 DLR 285.
9 . Procedure
—In contempt proceedings a Court of law would insist on an equal amount of strictness of proof and would act with as much prudence in assessing the evidence adduced as a Court of justice should exercise in all matters before it. It must however be observed that in contempt proceedings the Court is not bound by any technical considerations (21) CWN 1161 rel. Stale Vs. Abdur Rashid (1958) 10 DLR 568
(1959) 9 PLD 716.
-For reasons of client's misgiving about a case to be heard by a particular Bench, it is sent to another Bench. If the client had at all any misgiving about the hearing of this matter by this particular Bench they should have simply mentioned it before the Court in which event the then pending cases of their clients would have been sent to some other Bench in accordance with the usual practice obtaining in this Court.
State Vs. M. Noman (1964) 16 DLR 393.
—High Court can hear contempt matter committed of itself before Supreme Court. It was argued that the leave petitions haying been presented in the Supreme Court, that Court alone, to the exclusion of the High Court, has jurisdiction to take notice of the contents of the said petitions and deal with them in such manner as it thinks fit. Held: The High Court has jurisdiction although these were issued on the basis on the allegations made in the leave petitions filed in the Supreme Court. State Vs. M. Noman (1964) 16 DLR 393. [(1953)5 DLR (WPC) 88. This decision has been over-ruled in 5 DLR (FC) 216.]
--The Privy Council has not laid down that contempt proceedings are for all purposes criminal proceedings (40 CWN 802 (PS) explained)
State Vs. Abdul Rashid (1958) 10 DLR 568.
- Proceedings for contempt of Court should not be lightly started. M. 0. Ghani Vs. A.N.M. Mahmood (1966)18 DLR(SC) 463.
-If the High Court's order staying a proceeding pending before a subordinate Court affects another proceeding being an offshoot of the earlier proceeding, disposal of the subsequent proceeding will amount to contempt even though earlier proceeding was stayed in obedience to the High Court's order. Tangail Cotton Mills Ltd. Vs. Mr. Amanullah Khan (1977) 29 DLR 138.
--Contempt of Court may be in relation to matters pending in a court of law as also matters "about to be taken to Court" as well as matters which are not taken to court including even those which have been already decided. M. A. Awal Vs. Ehtesham Hyder [1976) 28 DLR 285.
10. Scandalizing Court.
--Scandalising remarks about the manner of disposal of some cases in the past. Where the printed or published or uttered matters amount to a scandalization of the Court with reference to a decided case or cases, it amounts to a clear contempt of Court. State Vs. Abdul Rashid (1958) 10 DLR 568J1959) 9 PLR 716.
--The contemner addressed a letter to the Judicial Secretary of the Provincial Government requesting him to move the authority to abolish the system of chamber examinations which are held in the High Court of Dacca by the Judges for the purpose of selecting advocates for enrolment and in that letter he used the following language :- "that the system as I understand is open to discrimination and is otherwise not conducive to the healthy growth of legal genious." Held: The language used did tend to scandalize the Court and to interfere with due administration of justice by the Court and, as such amounted to contempt of Court. There can be no doubt that when examining prospective Advocates in chambers with a view to their enrolments as practitioners in the Court, this court does discharge a function as a Court of justice and in relation to the administration of justice in these Courts. State Vs. S.W. Lakitullah (1958) 10 DLR 309.
-Criticism of the act of courts and judicial officers done in their administrative capacity, if contains improper imputations amounts to contempt of Court. Criticisms even of acts done or omitted to be done by judicial officers and courts in their administrative capacity, if containing improper imputations, would also amount to contempt of Court. State Vs. S.W. Lakitullah (1958) 10 DLR 309.
—In the case of Sir Edward Snelson, the offending passage which contained libellous matters against the Judges were as follows :- "I think every body............in any others case, the power does
exist (see judgment at page 549).
Held: (Per C./J-Thcse words constitute a libel upon the Court such as is calculated to interfere with the proper administration of justice by the High Courts and they therefore constitute contempt of Court. Edward Snelson Vs. Judges, High Court, Lahore, (1964) 16 DLR (SC) 535.
—Imputation of unfitness—Publication of libel, itself illegal. In relation to a person's office, it is a libel to impute any unfitness or want of ability to discharge his duties. Thus, it is libellous to impute total ignorance of law to a Barrister. In cases of this kind, no proof of special damage is necessary. "Special damage" meaning in the context, some actual temporal loss. (Per C.J.) Para 7 Edward Snelson Vs. Judges, High Court, Lahore, (1964) 16 DLR (SC)535
--Contempt of scandalising Court-Justification therefore itself amounts to contempt. Equally, the defence of fair comment is not available. For fair comment it is necessary that facts should be truly stated, it is not enough that there should be absence of malice, or that the expression of opinion should be honest. (Per CJ.) (para 4.8) Edward Snelson Vs. Judges, High Court, Lahore, (1964) 16 DLR (SC) 535.
--To say that the High Courts by exercise of excessive legal ingenuity were deliberately giving wrong decisions in writ matters, that the reprimand of the Supreme Court had no effect on them and that their improper conduct might.be disastrous for the country amount to a gross and aggravated contempt of Court. (Per Akbar, J.) Edward Snelson Vs. Judges, High Court: Lahore, (1964) 16 DLR (SC) 535.
—Judge's behaviour in discharge of his duties. A common man always looks upon a Judge as an impartial, unruffled emblem of justice. If a Judge loses his temper, indulges in improper language or becomes excitable, then the impersonal concept of the seat of justice gets a rude shock. (Per Akbar J.) Edward Snelson Vs. Judges, High Court, Lahore, (1964) 16 DLR (SC) 535.
—To impute to the Judges any unfitness, whether on account of incompetence, lack of integrity or otherwise amounts to scandalising a Court. It is necessary as stated by Wilmot, J. "to keep a blaze of glory around them and to deler people from attempting to render them contemptible in the eyes of the public". (Per Kaikaus,J.) Edward Snelson Vs. Judges, High Court, Lahore. (1964) 16 DLR (SC) 535.
--Attack on impartiality and fair-mindedness of High Court while acting administratively—punishable as contempt. The respondent in a letter to the Chief Secretary wrote, amongst others,the following sentences in which the words "mean machinations and malicious prosecution" did mean and referred to the High Court "J have faith that these essentially relevant documents will not be denied to an officer of outstanding record of honest and brilliant service, who has now to defend himself against mean machinations and malicious prosecution." "I invoke the protection of State's sceptre of sovereign authority against all evil designers, however high.".
Held: The remarks made by the respondent which were actually against the High Court in the exercise of its administrative functions amount to a contempt of the grossest kind. Even when made in connection with a representation any attack on the honesty or integrity of a judicial officer will be punishable in contempt. The same principle is applicable to an attack on the impartiality and fair-mindedness of a High Court, even when acting administratively. State Vs. Muhsin Tirmizey (1964) 16 DLR (WP) 177.,
-Disparaging words used against the Judges of the High Court in a letter addressed to the Chief Secretary of the Province—amounts to gross contempt of Court. Syed Mohsin Tirmizy Vs. State (1964).16DLR(SC)735.
No language used before a superior Court tending to lower the dignity of an inferior Court, rather than pointing out its errors, is justifiable. (1953) 5 DLR (FC) 216 [236 left-hand column]. -A transfer application supported by an affidavit contained certain scandalizing remarks about the trying Judge. On proceedings being drawn up against him for contempt of Court, the offending person, inter alia, set up a defence of good intention and that the statements were matters of fact. Held: If a person scandalizes a Judge of a superior Court, it is no good defence to say that his intention was good and he did not like to scandalize the Judge. The lest is whether the writing complained of tended to interfere with due course of justice and not what was the intention of the writer and truth of the statement cannot be set up as a defence. S. Israr Vs. Crown(19?5) 7 DLR [F.C.] 19 [35 right-hand col.]
-Scandalous and insulting allegations against Judge contained in transfer application not maintainable under law-Bona fides of applicant-Test. 4 PLD (Sind) 1.
--The petitioner in an application for adjournment to move for transfer had said that he had absolutely no hope of justice from the Court and prayed that he might be granted an adjournment so that the petitioner could get a just decision in the case..
Held: To impugn the impartiality or justice.of the Court to its face constitutes gross contempt. Lai Din Vs. Crown 7 PLD (Lah) 16.
(Per H. Rahman, J.)- Whenever facts were brought to the notice of a judge which contained the slightest objection to his hearing a case the judge concerned should decline to hear the case. M. H. Khondakar Vs. State (1966)18 DLR (SC) 124.
--Litigant or his lawyers must refrain from saying or doing anything which might have the effect of scandalizing the Court. M. H. Khondakar Vs. State (1966) 18 DLR (SC) 124.
-When such a plea of bias is raised it should be remembered that nothing should be said to scandalize the Judge or Judges. M. H. Khondakar Vs. State (1966) 18 DLR (SC) 124.
"Magistrate playing as a tool in the hands of a party"--amounts to serious contempt of Court.
To say that a "Magistrate is playing as a tool" in the hands of a party is a serious onslaught on the dignity of the Cosjrt and these expressions clearly scandalise the Court. Slate Vs. Khandkar Shamsul Hague (1967) 19 DLR 526.
-Contempt of Court-Scandalisation of Court is grossest form of contempt : Legal practitioners may be punished for contempt of court even for language professedly used in discharge of their functions as Advocates-Advocate is guilty of contempt in making wild allegations of corruption against the trying Judge without verifying and satisfying himself that the allegations were in fact sustainable-He cannot claim • any privilege if not acted in a bonafide and diligent manner. It has been repeatedly emphasised that they are not agents of the men who pay them but are acting in the administration of justice and in matters of making applications to court they are bound to exercise an independent judgment and to conduct themselves with a sense of personal responsibility. The State Vs. Yusuf All Khan (1969) 21 DLR (WP)264.
—Scandalisalion of Judges that they acquired property by improper means constitutes gross contempt of Court. The State Vs. Ezaz Mahmood (1971) 23 DLR (Lah.) 41.
-Plaint in the Money Suit No. 3, 1980 which contained scandalous allegations against the District and Sessions Judge and the filing of that suit as well as the appeal against the judgment in the suit-all constitute contempt of Court. State Vs. Abdul Majid (1981) 33 DLR 220.
-Paragraphs 8,11,14 and 15 of the plaint of the Money Suit have scandalised the Sessions Judge by imputing to his unfitncss, corruption, malafide, misuse of official power and maliciousness, and we feel no hesitation to hold that such such a plaint constitutes a very gross contempt of Court. An anonymous leaflet containing scurrilous matters against the District Judge was sent to the oppositeParty No.2 by some members of the local Bar requesting him to represent the matter to the Government to hold an enquiry into the contents of the leaflet. Opposite party No.2 in his turn sent the representation to the Government with a request to hold an enquiry into the matter and at the same time added a request that to facilitate the enquiry the District Judge should immediately be transferred.
Held: The representation was made by opposite party 2 to the Government for an enquiry without arty comment on the allegations contained in the leaflet.If such a representation is stifled by means of summary action for contempt of Court, then it would not be in the interest of justice.
The High Court can not approve the opposite party No.2's request to the Government for immediate transfer of the District judge.
State Vs. Abdul Majid (1981) 33 DLR 220.
11. Test
The real test in cases of this nature is whether ,the publication complained of tended or was calculated to interfere with the course of justice in any substantial or real manner, either by prejudicing a fair trial or by prejudicing the minds of the public against person concerned as parties in causes before the cause is finally heard. In determining the effect neither the intention of the printers or authors nor the truth or falsity of the allegations contained in the publication complained of, is of any consequence for, what a Court of law is concerned is that it should not permit any one to po*isonwith the fountain of justice before it begins to flow. Attorney-General of Pakistan Vs. Abdul Hamid Sheik, (1963) 15 DLR (SC) 96.
—"Reasonable cause" (within the meaning of Clause 8 of the Letters Patent, Lahore).
It has never been doubted that a contempt of Court by a member of the legal profession is a "reasonable cause" for taking disciplinary proceeding against him, the reason being that any such conduct on the part of an Advocate reveals a mental defect which so long as it lasts renders him unfit to remain a part of the system which he seeks to damage by bringing it into contempt. 5 PLD (Lahore) 244.
Offending pamphlet-printer and publisher normally liable. 5 PLD [Pesh] 26.
--How circumstances leading to an apprehension in the mind of the litigant developed in the present case. M. H. Khondakar Vs. State (1966) 18 DLR (SC) 124.
(Per SA. Rahman, /.^-Identity of interest with a party is necessary to base the allegation of bias. M. //. Khondakar Vs. State (1966) 18 DLR (SC) 124.
—Oral statement about contemptuous words •'used require strict proof. Sk. Abdul Bari Vs. Abdus Samad Bhuiya (1977) 29 D.L.R. 20.
Court's function before it forms its conclusion.
The duty of the court is to consider all the evidence of both parties and then, to ascertain whether the plaintiffs had clear possession in the suit lands and also if such possession was legal and bonafide and after such findings to decide whether a permanent injunction ought to be granted or not. Bazlur Rahman Vs. Jan Mohammad (1985) 37 DLR 79.
12. What is contempt and what is not
Intention to cause prejudice not a necessary ingredient. If a publication is "calculated", that is, is of nature or character likely to—that would be contempt. The word "calculated" has two meanings: one is "devised with forethought" and the other "is of a nature or character proper or likely to." The word "calculated" used by the Privy Council in the case of Devi Prasad Vs. Emperor in the sentence "calculated to obstruct or interfere with the course of justice and the due administration of the law."
Intention to cause prejudice is not a necessary ingredient in a case of contempt of Court. Abdus Salam Vs. State (1958) 10 DLR (SC) 176',(1958) PLD (SCI 528.
-Criticism of the acts of Court and judicial officers done in 'their administrative capacity', if contains improper imputations amounts to contempt of Court. State Vs. Lakitullah (1958) 10 DLR 309.
--Person circulating and publishing contemptuous matters, guilty of contempt. State Vs. Lakitullah (1958) 10 DLR 309.
-Actual interference with the course of justice not necessary. It is sufficient that they should be calculated to have that effect.
'Calculated' means that the offending words should be of a nature or character proper or likely to obstruct or interfere in that matter. ^The words that during the "Muslim League" the judiciary had been influenced by the Ministry amount to gross contempt of Court. State Vs. A. Rashid (1958) 10 DLR 568 (1959) 9 PLR 716.
--Conduct that tends to bring administration of justice in disrespect amounts to contempt. This power should be sparingly used and only in serious cases. Md. Samiullah Vs. Slate, (1963) 15 DLR (SC) 150.
Every non-disclosure of relevant fact or absence of every process does not amount to contempt. Md. Samiullah Vs. State, (1963) 15 DLR (SC) 150.
-Injunction order of the Court-Disobedience of; Person not a party to the proceeding in which the injunction order was passed, not guilty of contempt of Court unless he aids or abets the infringement of the order. Aftabuddin Sarkar Vs. Azahar All (1963) 15 DLR 533.
-Defamatory statement in official report even though malicious, permissible. Appellant's speech is not of that kind. (Para 51) Edward Snelson Vs. Judges, High Court Lah. (1964) 16 DLR (FQ-535.
-Hamoodur Rahman, J.
-Fair comment not contempt.
--I would not claim to cloak Judges in any "blaze of glory" nor would I maintain thatyustice is a "cloistered virtue". "Judges and courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat that as contempt of Court." (Para 156) Edward Snelson Vs. Judges, High Court Lah. (1964) 16 DLR (FC) 535.
-The courts on their part should not be too astute in such cases to discover hidden meaning in the words used in making such criticism nor be unduly touchy or sensitive nor should they take notice of any and every derogatory comment where there is no real likelihood of any. substantial interference with the due course of justice. (Para ti$) Edward Snelson Vs. Judges, High Court Lah. (1964) 16 DLR (FC) 535.
--Criticism of conducts of Judges, which cannot possibly have the tendency to obstruct or interfere with the administration of justice, are not contempt of courts even though they may be libellous attacks on Judges. In dealing with such offensive words or writings courts are not concerned with the actual effect produced by them.
"Calculated" in this context means that the offending words should be of a nature or character proper or likely to obstruct or interfere in that manner. (Para 160) Edward Snelson Vs. Judges, High Court Lah. (1964) 16 DLR (FC) 535.
—Persons circulating and publishing contemptuous matters guilty of contempt. State Vs. S.W. Lakitullah, (1958) 10 DLR 309.
-Failure to obey process of Court does not amount to contempt unless something more as contumacious disregard of court's order is established. In the absence of any proof of a contumacious disregard of an order of the court no committal for contempt is possible. Mere failure to obey any process of the court, when other methods of enforcing the process are available, does not amount to a contempt of court unless the person served with the process has done something more to exhibit a disrespect for the process of the Court, as for example, used insolent or indecent expressions or violent or profane language on being served with such a process or assaulted or ill treated the process server.
It is the utmost importance that a committal for contempt should not be made unless the disobedience shown is of such a serious nature as to indicate that the alleged contemner is deliberately out to flout the order of the Court and to treat with some degree of contumaciousness. Bhawal Vs. State, (1962) 14 DLR (SC) 273
--Fair comment, no offence.
Fair and legitimate comment on judgments of a court would not be actionable, provided the limits of bonafide criticism are not exceeded. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men. The power to commit should be sparingly used and any technical or formal contempt should be ignored, as hyperscnsitiveness on the part of judges would stifle attach a very sinister significance lo such parties. 7 PLD (Sind) 410.
-In the High Court the position of a party is peculiar. If bias in a Judge is reasonably suspected and for this purpose any statement which forms the basis of the apprehension to be made is true, it is too much to say the party is helpless and its lawyer is powerless.
If any statement which forms the basis of the apprehension is made which is true or is based on careful enquiry, no exception can be taken but if it is otherwise, the act amounts to contempt of Court. Reasonable apprehension of bias in a Judge can be stated.
In placing the plea of bias as against a Court no person is entitled to" commit contempt of Court. The law permits a party to a proceeding to place his case before the court and at the same time it prohibits commission of contempt of Court. (Para 102). State Vs. M. Noman (1964) 16 DLR 393.
Power of committal.—Power of committal given to superior Court is a necessary power given. The power of committal for contempt is given to such superior Courts in order that they may swiftly and summarily perform one of their most important duties which is to protect themselves against wilful disregard or disobedience of their authority. (Para .28). Edward Snelson Vs. Judges, 11.C. Lahore (1964) 16 DLR (SC) 535.
-It is necessary to arm the Courts with powers to defend themselves against every attack upon the position which they occupy in the administration of justice. Confidence in their capacity as such can be allowed to be affected only at the risk of dissolution of the entire system of Courts. (Para 29) Edward Snelson Vs. Judges, II.C. Lahore (1964) 16 DLR (SC) 535.
(Per Cornelius, CJ.)-Allegation of bias-When bias genuinely apprehended in the Member of a Bench: a bold and full declaration to that effect-No offence. M. H. Khondakar Vs. State (1966) 18 DLR (SC) 124.
-Contact between a presiding Judge and a litigant while the latter's case is pending before the Judge resulting in some advantage going to the latter~A serious matter. M. H. Khondakar Vs. State (1966) 18 DLR (SC) 124.
-Seeing several acts in isolation and not taking a full view of all circumstances in their proper context may not convey a complete appreciation of legitimate apprehension in the mind of a litigant. M. H. Khondakar Vs. State (1966) 18 DLR (SC) 124.
-Statements made in relation to what had taken place in the Court room by the petitioner and his lawyers were contemptuous—Due care and circumspection must be exercised by a litigant when making allegation of bias. M. H. Khondakar Vs. State (1966) 18 DLR (SC) 124.
—Repetition of contempt matter before the Supreme Court in regard to the Judges of the High Court is equally a contempt. M. H. Khondakar Vs. Stale (1966) 18 DLR (SC) 124.
Disobedience to the process of Court.
Mere failure to obey process of Court when other matters of enforcing the process are open,, does not constitute contempt deserving summary punishment. M. 0. Ghani Vs. A.N.M. Mahmood (1966)18 DLR(SC) 463.
-The law of contempt is a device to restore the balance in the scales of justice, when upset by unauthorised interference with processes of law and punishment, which may lead to a cul de sac, has never been, by itself, the end of law. Aziza Khatun Vs. The State (1967) 19 DLR 355.
Officials (Custom Offices) were directed by the High Court to release goods seized-Goods accordingly released but next moment re-seized--Contention raised re-seizure amounted to contempt of Court—Held no contempt of Court committed.
Some Officers of the Sea Customs, Karachi raided some cloth shops in Karachi and seized imported foreign cloth from the shops. The petitioner (one of the shop-keepers) moved the High Court and challenged the action of the Custom Authority. The High Court in a judgment declared that the seizure of the cloth was without any lawful •authority and ordered return of the cloth of the petitioner after preparing an inventory of the goods. The Custom Authority released the goods and delivered the same to the petitioner but just after the goods were loaded on a truck by the petitioner; the Custom Authority once again seized the goods under section 178 of the Sea Customs Act.
It was "contended that the Custom Authority in re-seizing the goods had violated the orders of the High Court.
Held : The action of the Custom Authorities gives the impression that the delivery of the seized goods to the petitioner by the Custom Authorities was made more in their anxiety to comply with the orders of the High Court rather than to defy it. They have re-seized the goods in their belief that the order of the High Court had not placed any restriction on them to do so. The High Court in disposing of the contempt application has said that no restriction was placed on the Customs Authorities against reseizing of the goods if the requirements of law were fulfilled. When the High Court itself thinks that in re-seizing the goods the Custom Authorities had purported to act in the, exercise of their powers and no contempt was committed by them, it becomes impossible to think that the Supreme Court should feel differently, for the dignity of the superior Courts to see that their orders command absolute submission. In proceedings for contempt where the ' conduct of a person who has apparently defied the orders of the Court leaves room for doubt with ) regard to his intention and a belief is possible, that he has acted either mistakenly or on wrong but honest notions of his rights, the benefit of doubt should ungrudgingly be given to him. S.M. Yousuf Vs. S.K. Rahim (1969) 21 DLR (SC) 121.
—Contemner's defence in a contempt proceeding, aggravates the offence.
In a contempt proceeding the contemner is not allowed to prove the truth of the allegation because this will bring the contemner into further contempt by pleading the truth and offering to prove it but the contemner can, however, prove the truth of allegation made against him in the contempt proceedings, that is, whether the contemner had indeed done the act or made the writing forming the basis of the accusation. State Vs. Ezaz Mahmood (1971) 23 DLR (Lah.) 41
-A successor-in-office of a person who has been guilty of contempt of court cannot be held . guilty on the plea that he took no step to cancel letter which constituted contempt issued by is procedessor. M/s. The Free School Street Property Ltd. Vs. Bangladesh (1978) 30 DLR 6.
—Contempt of Court, not defined-Each case rests with a Judge for his decision.
Nowhere in the statutes contempt of court has been defined and it has been left to the Court to determine on the merits of each case whether particular act or speech or publication constitutes' "contempt of Court." It is for the Judges only to decide whether, on the applications coming before them, any specific act of the respondent cornea within the mischief of the law of contempt. M. A. Awal Vs. Ehtesham Hyder (1976) 28 DLR 285.
-Terming a judgment biased, including adulation of a judgment or a judge may constitute contempt. M. A. Awal Vs. Ehtesham Hyder (1976) 28 DLR 285.
-Contempt proceeding is not to be used as a protection to a judge in his individual capacity-Underlying idea is to maintain the authority of the court in the estimation of the public and that confidence in justice is not shaken. Abdul Mannan Vs. State (1977) 29 DLR 311.
-'•Words used by a person not a party in the proceeding in court aimed at a court of justice may be contemptuous—Insulting words may be contemptuous-Tone employed may change its innocent character. Sk. Abdul Bari Vs. Abdus SamadBhuiya (1977) 29D.L.R20.
-Proceeding for contempt of court are of a quasi-criminal nature. Benefit of doubt to be given in case of reasonable doubt. Mahbur Rahman Sikder Vs. Mujibur Rahman Sidker (1983) 35 DLR-(AD) 203.
--Contempt of court being quasi-criminal in nature the respondent contemnei is not like an accused in a criminal case. Mahbur Rahman Sikder Vs. Mujibur Rahman Sidker (1983) 35 DLR (AD) 203.
—Object of the contempt proceeding is to protect the dignity of the court and not to satisfy the grudges of any private individual. Mahbubur Rahman Sikder Vs. Mujibur Rahman Sikder (1983) 35 DLR (AD) 203.
-Technical disobedience not amounts to contempt of court. Mahbubur Rahman Sikder Vs. Mujibur Rahman Sikder (1983) 35 DLR (AD) 203.
-Notice issued for contempt of court must set out precisely details which constitute contempt. Mahbur Rahman Sikder Vs. Mujibur Rahman Sidker (1983) 35 DLR (AD) 203.
Circumstance and events which constitute contempt of court elaborated.
'Contempt of Court' has nowhere been defined in statutes. It has been conveniently described by referring to its ingredients and citing examples 'Contempt' may be constituted by any conduct that brings authority of the Court into disrespect or disregard or undermines its dignity and prestige. Scandalising the court is a worst kind of contempt. Making imputations touching on the impartiality and integrity of a Judge or making sarcastic remarks about his judicial competence is also a contempt. Conduct or action causing obstruction or interfering with the course of justice is a contempt. To prejudice the general public against a party to an action before it is heard is another form of contempt. Court's special responsibility in maintaining the self-imposed code of conduct—Behaviour and dealings with reference to those who come in contact, their keeping open and fair mind and impartiality-all emphasised. Moazzem Hossain Vs. State (1983) 35 DLR (AD) 290.
Sentence—when contempt of court is found to have been committed.
Opposite party No.l Abdul Majid Munshi is found" guilty of gross contempt of Court and sentenced to suffer simple imprisonment for one month. Opposite party No. 3 Abdul Malek Munshi is guilty of contempt but since he has tendered unqualified apology although at a very late stage, he is reprimanded and let off with a warning only. As regards opposite party 4, his contention being that he did not realise the implication of filing an appeal so the court took a lenient view of the matter and let him off with a warning. State Vs. Abdul Majid (1981) 33 DLR 220.
--Filing a suit Containing contemptuous allegations against a Judge constitutes contempt of Court.
Money Suit was for recovery of compensation from the learned Sessions Judge for rejecting prayer of Abul Kalam for a discharge warrant. It cannot be disputed that the very filing of a suit of this nature is gross contempt of Court. If the plaintiff had any grievance against the rejection of his prayer for a discharge warrant, his remedy was to move the superior Court against the said order, but to file a suit for recovery of compensation for the said rejection and that too containing scandalous statements against the judicial officer, would clearly amount to lowering the judiciary in the estimate of the people and obstruction of the administration of justice. State Vs. Abdul Majid (1981) 33 DLR 220.
-Use of word "malicious" against the remarks of the trial court in the order while rejecting the plaint constituted contempt. As regards the allegation against opposite party No. 3 that in the application for leave to appeal he characterised the impugned remarks of the learned Munsif as "malicious" constitutes a clear contempt of Court. An order or remarks made by a Court may be erroneous in fact and in law but it cannot be termed as "malicious" with impunity. Opposite party No.3 Abdul Malek Munshi is guilty of contempt of Court for using the word "malicious".
A lawyer should exercise great care and caution in drafting and filing application or plaints in Court and see that it does not contain any reflection upon the integrity of the Court. Opposite party No.3.
Abdul Malek Munshi, however, has tendered unqualified apology for using the word 'malicious1 in relation to the impugned remark, after a vain attempt to justify the same. Even though the apology was tendered at a very late state, we are inclined to take a lenient view of the matter. State Vs. Abdul Majid (1981) 33 DLR 220.
13. When proceeding for contempt should be taken.
—The power of commitment for contempt "should be used sparingly and only in serious cases" and that Court should not be cither unduly touchy or over-astute in discovering new varieties of contempts, for "its usefulness depends on the wisdom and restraint with which it is exercised". Md. Samiullah Vs. State. (1963) 15 DLR (SC) 150.
—When considering whether a particular act amounts to a contempt or not to balance on the one hand the effects it might have on the litigation with, on the other, the wider public interest of extending to litigant public the freedom of conducting their litigation without being constantly under the threat of conviction for contempt and only if on the balance there is benefit to the public interest in the wider sense, this power should be utilised. Md. Samiullah Vs. State. (1963) 15 DLR (SC) 150.
—The summary power of punishing for contempt should be used sparingly and only in serious cases. It is a power which a Court must of necessity possess; its usefulness depends on the wisdom and restraint with which it is exercised, and to use it to suppress methods of advocacy which are merely offensive is to use it for a purpose for which it was never intended. Joseph Vs. Queen (PC) (1953) 5 DLR 540 (544 left-hand col).
-Procedure in contempt matters not regulated by the law-High Court may pronounce orders upon hearing a part only of the evidence.
Abdur Rashid Vs. Mehar Falak (1955) 7 DLR (FC) 162.
—When proceeding should be taken.--The offence of contempt of Court may be committed in relation to any proceeding though not judicial in character if there is specific provision to that effect.' (Per Akram). Sk. Abdul Huq Vs. Crown (1955) 7 DLR (FC) 197.
-The Court of Inquiry under the Punjab Disturbance (Public Inquiry) Ordinance in dealing with contempt proceedings was acting judicially and, as such, its order could be the subject of an appeal to the Federal Court. (Per Mohammed Sharif, J.) Sk. Abdul Huq Vs. Crown (1955) 7 DLR (FC) 197.
--The Court of Inquiry constituted under Ordinance was not a Tribunal exercising judicial power and therefore it cannot be said to be a Court or its Members Judges or Judicial officers. No appeal would lie against an order passed under the Ordinance by the Court of Inquiry. (Per Shahabuddin, J.—disagreeing ) Sk. Abdul.Huq Vs. Crown (1955) 7 DLR (FC) 197.
—More vigilance on the conduct of Court is necessary in circumstances which have happened in the present case to prevent a danger to the cause of justice. M. H. Khondakar Vs. State (1966) 18 DLR (SC) 124.
-While sitting as a Court of Law the Judges should not be too 'sensitive, should have a measure of indulgence to lawyers when arguing case. Abdul Mannan Vs. State (1977) 29 DLR 311.
-Contempt proceedings, are quasi-criminal proceedings and the charge of contempt must be proved to the hilt. Any summary power to punish should be sparingly used. MahbuburRahmanSikder Vs. Mujibur Rahman Sikder (1983) 35 DLR (AD) 203.
--Civil contempt and criminal contempt-What civil contempt means explained.
Badrul Haider Chowdhury, J:- Contempt of court means civil contempt or criminal contempt and civil contempt is defined as wilful disobedience to any judgment, direction, order, writ or other processes of court or wilful breach of an undertaking given to the Court. Mahbubur 'Rahman Sikder Vs. Mujibur Rahman Sikder (2983)-35 DLR (AD) 203:
--The distinction between criminal contempt and civil contempt.—
Thedistinction .between criminal contempt and civil contempt is narrow. It was held in Catmur Vs. Knatchbull the non-performance of an award was a contempt of the court and might be regarded technically an offence. But as it related simply to a civil matter, and was rather in the nature of process to compel the performance of specific act, the matter was in substance not criminal but civil. Mahbubur Raman Sikder Vs. Mujibur Rahman Sikder (1983) 35 DLR (AD) 203;
-Contempt of court does not always take the form of criminal contempt.
There are many contempts of court that are not of a criminal nature; for instance, when a man does not obey an order of the Court made in some civil proceeding to do or abstain from doing something as where an injunction is granted in an action against a defendant, and he does not perform what he is ordered to perform, and then a motion is made to commit him for contempt, that is really only a procedure to get something done in ihe action, and has nothing of a criminal nature in it. Mahbubur Rahman Sikder Vs. Mujibur Rahman Sikder (1983) 35 DLR (AD) 203.
-Contempt proceedings may be initiated primarily to vindicate court's authority or it may be as a coercive measure to enforce the litigant's rights or may be for both. Mahbubur Rahman Sikder Vs. Mujibur Rahman Sikder (1983) 35 DLR (AD) 203.
Sentence that has been imposed in this case-
Not in form Proceedings are quasi-criminal In a contempt proceeding which is quasicriminal in nature, the contemner is entitled to benefit of doubt, and since the Court is both prosecutor and judge, rule as to proof of guilty of the contemner must be strictly observed. Moazzem Hossain Vs. State (1983) 35 DLR (AD) 290.
-Court's special responsibility in maintaining the self-imposed code of conduct-Behaviour and
dealings with reference to those who come in contact, their keeping open and fair mind and impartiality-all emphasied, Moazzem Hossain Vs. State (1983) 35 DLR (AD) 290.
-Dignity, independence of the courts of law must at all costs be upheld, otherwise society will collapse. State Vs. Abdul Karim Sarkar (1985) 37 DLR 26.
--The contemner, an U.N. O. is guilty of gross contempt of court, which he tried to shield by still worse acts and punishable as such. State Vs. Abdul Karim Sarkar (1985) 37 DLR 26.
Proceedings for contempt of court are of a quasi-criminal nature—Benefit of doubt to be given in case of reasonable doubt.
It may be borne in mind that though a contempt proceeding is quasi-criminal in nature, the respondent contemner is not like an accused in a criminal case since he may file affidavit or make statements on oath in refutation of the allegation against him. We find the contemner guilty of committing contempt of court by wilful disobedience of court's order. We, there, convict him and sentence him to pay a fine of Tk. 1,0007- in default, to simple imprisonment for three months. Mahbubur Rahman Vs. Majibur Rahman (1983) 35 DLR (AD) 203.
Contempt of Court-Power to punish.
"The power to punish for contempt, as a means of safeguarding judges in deciding on behalf of the community as impartially as is'given to the lot of men to decide, is not a privilege accorded to judges. The power to punish for contempt of court is a safeguard not for Judges as persons but for the function which they exercise". MoazzemHossain Vs. State (1983) 35 DLR (AD) 290.
--Contempt of Court-Power to punish for contempt vouchsafed to the Supreme Court, to be used judicially and with great caution. Risk in case of its misuse. The Privy Council in the case of Joseph Vs. Queen while emphasising'the necessity of the court possessing power to punish for contempt sounded a note of caution that this power must be exercised very sparingly and only in the case of extreme necessity.
It is a power which a Court must of necessity possess, its usefulness depends on the wisdom and restraint with which it is exercised and to use it to suppress methods of advocacy which are merely offensive is to use for a purpose for which it was never intended. The law of contempt of our country is based on Common Law of England and as such the observation of the Privy Council as quoted above has got great persuasive value in our case.
Contempt of Court—Supreme Court's power; F. K, M. A. Munim, C.J. To
commit someone for contempt of court and punish him for it if found guilty, is the inherent power of a Court of Record. The Supreme Court of Bangladesh is such a Court. The power is no doubt extraordinary. The judge who commits any one for contempt of court is both prosecutor-and arbiter of-the alleged offence. It is, therefore, not unusual to issue a notice for contempt of court when occasion arises. M, Hossain Vs. State, (1983) 35 DLR(AD) 290. ..
Contempt of Court—Proceedings are quasi—criminal.
In a contempt proceeding which is quasi-criminal in nature, the contemner is entitled to benefit of doubt, and since the Court is both prosecutor and judge, rule as to proof of guilt of the contemner must be strictly observed. M. Hossain Vs. State, (1983) 35 DLR (AD) 290.
—Two members of the Municipal Committee who were not made parties in the injunction case which was filed for postponing the election of the Vice-Chairman of the Municipality were present in Court when the order of injunction was passed by the Munsif. They later on participated in the meeting and voted for Vice-Chairman's election.Held : Though not parties in the-injunction case they were guilty of contempt of court under Act XII of 1926. M.A Zaher Vs. Mainuddin (1976) 28 DLR (Appl. Divn.) 165.
CONTEMPT OF COURT ACT. (XII OF 1926)
Sec. 1 gives the title of the Act and provides for its extent and commencement. Sub-section (1) of Sec. 2 deals with the powers of the High Courts established by Letters Patent to punish contempt of courts subordinate to them. Sub-section (2) of the same section deals with the powers of the Chief Courts to punish contempts of themselves. Sub-section(3) of the same section prohibits the High Courts from taking cognizance of contempt of the Subordinate Courts punishable under the Penal Code. Sec. 3 is the penal section and limits the punishment for contempt of court to six months' imprisonment or Rs. 2,000 fine.
This analysis of the Act clearly indicates the following :
1. So far as the High Courts are concerned, it merely deals with their power to punish contempt of the courts subordinate to them, and does not, either expressly or impliedly, make any provision for the High Courts to deal with contempt of themselves. By sub-section (1) of section 2 it empowers the High Courts to punish contempt of the subordinate courts and by sub-section (3) of the same section, it prohibits them from taking cognizance of contempt of the subordinate courts which is punishable under the Penal Code.
The Act presumes that the power of the High Courts to punish contempt of themselves does already exist and consequently empowers them to exercise the same jurisdiction, power and authority in accordance with the same procedure and practice in respect of contempt of subordinate courts "as they have and exercise in respect of contempts of themselves."
Evidently, therefore, sec. 3 provides a penalty for the contempts only which are specifically made punishable by the Act and does not affect those contempts which were already punishable. From this it naturally follows that the inherent power of the High Courts as Superior Courts of Record to punish contempt of themselves has not been taken away by the Act. It has been left undisturbed and, consequently, the High Courts in India continue to have power to deal with contempt of themselves in the same manner as a Court of Record has under the Common Law of England. Lala Harkishen Lai in • the matter of 1937 Lah. 497—-170 I.C. 375-39 P.L.R. 733-38 Cr.LJ. 883-1.L.R. 1937 Lah. 69
Scope—The Act, as its name implies, applies only to Courts of Justice and persons or officers connected with the judicial administration. As such the application of the Act cannot be stretched to include within its purview any breach of undertaking given to or attack on executive authority or power. It will, however, be considered an act of contempt if any criticism of the acts of the .executive published in newspapers is offered in respect of matters which are sub judice or are about to be adjudicated upon, as was clearly stated in Emp. Vs. Khusbalchand. 1945 Lah. 206.-
S-2-—It is not to be doubted that both the heading and the preamble are to be taken into consideration in interpreting the clauses of the Act, but they are not the operative portion of the Act. The operative portion of the Act which the court has to interpret with regard to this statute is contained in section 2 of the Act. Mohammad Yusuf Vs.Imtiaz Ahmad Kar, 1939 Oudh 13? F.B.—939-40 Cr.LJ. 421-14 Luck, 492 (F£.)
Contempt of Subordinate Courts—
Procedure for taking action,—It is the duty of all Magistrates who receive letters amounting to contempt of court or upon whom any attempt is made to bring improper influence to bear in connection with their magisterial work, to bring the fact to the notice of the High Court so that action under the Act may be taken. Mahabir Prasdd Vs. C£. Gupta, 1939 Oudh 90.
--'Courts subordinate to them'—
The words 'Courts subordinate to them' or 'subordinate courts' used in the Contempt of Courts Act are used in a wide sense as including any court over which the High Court has superintendence for the purposes of S. 85, Government of Burma Act, 1935, that is to say, all courts subject for the time being to its appellate jurisdiction. For instance, a Sub-Divisional Magistrate when holding an enquiry
under S. 176 of Cr.P.C. is acting as a Court subordinate to the High Court for the purpose of this Act. Advocate-General Vs. Maung Chit Maung, 41 Cr.LJ. 470.
Application under section after termination of proceedings—Where an application under S. 100 Cr.P.C. directed against a particular individual has terminated the filing of complaints under S. 500 of I.P.C. and S. 195 Cr.P.C., by the individual against whom the disposed off application was directed does not in any way affect the trial of any pending proceedings and hence an application under S.2 of Contempt of Courts Act on the basis of such complaints would not be maintainable. Mahadeo Prasad Vs. Dr. Tej Narain Bahadur, 208 I.C. 212-45 CrLJ. 108.
Absence of signature in application, if fataWhough the rules and practice of the court require that petitions for taking action under the Conternpt of Courts Act should be signed by or on behalf of the persons presenting them, still, where the court has before it evidence legally admissible showing prima facie that contempt had been committed, it can and should of its own-motion, issue the rule; and the absence of a proper signature in such cases is not a fatal irregularity and does not entitle the opposite parties to ask for the discharge of the rule. (Tushar Kdnli Ghosh Vs. Governor of Bengal, 60 Cal.603-34 Cr.LJ. 662.)
--At a meeting of the Karachi Bar Association, a resolution was passed in the following terms:
"The Karachi Bar Association has learned with great regret and concern of the undeserved insult
given by the Hon'ble Chief Judge to...............and places on record that in its opinidn the attitude of the Hon'ble Chief Judge has been persistently contemptuous -towards the members of the Bar in general and the displaced lawyers in particular, etc."
Held : The resolution contains a personal scurrilous abuse of a Judge as a Judge and amounts to contempt of Court. Judges and Courts are alike open to criticism and if reasonable arguments are offered against any judicial act as contrary to law or the public good, no court would treat that as contempt of Court. 2 Pak Cr. Reporter 27.
Sees. 2 & 3—Conviction of a person for contempt of Court in the absence of such contemner not justified except in exceptional cases. Editor, Daily Nawa-i-Waqt Vs. State (1966) 18 DLR (SC) 295.
—Provision of the section will not be applicable when the offence committed is punishable under the Penal Code as contempt of Court, (7956) 8 DLR 650.
The prohibition contained in sub-section (3) of section 2 is limited to cases punishable under the Penal Code as contempt of court but not otherwise. The expression " offence punishable under the Code" in section 2(3) does not imply offence of every description punishable under the Code. Fate Mahamud Vs. Md. Niamat (1955) 7 DLR (FC) 162 (165).
—Justification of contempt—
It is well settled that a plea of justification cannot be raised in answer to a charge of contempt. - Therefore, the Court would not inquire into the facts on the basis of which justification is pleaded by the party. State Vs. Muhsin Tirmizey, (1964) 16 DLR (WP)177(F£.)
—Recognition of existing powers of High Court by section—This section expressly recognises the power of the chartered High Courts to commit for contempt. In K.L. Gaubain re. I.L.R. 1942 Lah. 41143 Cr.LJ. The respondent in answer to notice for contempt of Court raised an objection that the Court (Lahore High Court) had no jurisdiction to punish brevi manu any contempt ex facie curiae. The question whether the Lahore High Court can proceed brevi manu to punish contempts of its own authority and the contempts of the subordinate courts has been the subject matter of two Full Bench decisions (Emp, V. Sayyld Habib, 6 Lah. 528-1926 Lah. 1.89 I.C. 833-26 Cr.L.J. 1409 F.B., Muslim Outlook" in the matter of 1927 Lah. 610-103 I.C. 775-28. Cr.L.J. 727.) of that court. The Presidency High Courts and the High Courts of Allahabad and Patna are possessed of this jurisdiction. The Sind, Rangoon and Nagpur High Courts have also exercised the jurisdiction summarily to punish contempts. The decision in Emp. Vs. Jarapore (1940 Sund 239-191 I.C 519-47 CrJLJ- 1.LR. 1941 Kar. 3.) is conclusive as regards Sind. Besides by S. 220, Government of India Act, 1935, every High Court which is mentioned in S. 219 of that Act (and the Lahore High Court is such a court) is constituted a Court of Record and the power to commit for contempt is a necessary incident and attribute of a Court of Record.
A District Sub-Registrar by refusing to stay proceedings pending before him or to send documents to the Munsif, in compliance with the latter's order, commits no contempt of Court. (1953) 5 DLR 454. Dr. A.C. Acharya Vs. FA. Chowdhury.
-District Sub-Registrar or Registering Officer is neither a Court nor a court subordinate to Munsif and, therefore, a Munsif has no jurisdiction to stay the proceedings for registration pending before the District Sub-Registrar or the Registration Officer. (1953) 5 DLR 454 Dr. A.C. Acharya Vs. FA. Chowdhury.
Although the Registering Officer is not a Court—a Civil Court—If it really wants the proceedings regarding registration of a document pending before a Registering Officer to be stayed, it is quite competent to restrain the party concerned in the suit from proceeding with the registration of the document instead of trying to restrain the Registering Officer. (1955) 5 DLR 454 Dr. A.C. Acharya Vs. F.A. Chowdhury.
—The meaning of s. 2(3) is that where under the Penal Code there is already a provision for punishing a contempt of court, the Contempt of Court Act itself shall have no application; it does not mean that, when the act which has constituted the contempt of court also constitutes an offence under the Penal Code, it may not be punished under the Contempt of Court Act.
Where a minor was ordered by a court to be placed in the custody of guardian appointed by the court, the guardian so appointed alone can deal with the marriage of the minor. Disobedience of the order by any other person marrying the minor will not be an offence under s. 228,1.P.C. but comes under the Contempt of Courts Act.
An act may be both an offence under the Penal Code and an offence under the Contempt of Courts Act and may be punishable in one or other of both capacities. In re Kaulashia, 1933 Pat. 142-34 Cr. L. J. 770.
—S.2—Articles published in newspaper scandalising judges of Chief Court—Charges ranging from nepotism, favouritism and contravention of procedure rules-Such articles calculated to bring Court into contempt and interfered with administration of justice— Offence under S.2 established—Apologies not made at earliest opportunity—Plea not honest—Such apologies should not be accepted.
Articles scandalised judges of this Court, the articles were calculated to bring this Court into contempt and interfere with the administration of justice. The apologies made in this case were not made at the earliest opportunity. They were only made when the matter came up for hearing. It was impossible to say that the attitude of the respondents in this case was such as to indicate any genuine remorse or contrition on their part for the offences committed by them. The plea put forward by them that they did not intend to bring the Court into disrepute or contempt was clearly not honest or truthful. A.I.R 1923 Bom. 242 and 6 Lah. 528 ref. : [(Tyabji, C.J., Constantine, Vellani, Mohamed Bachal and Muhammad Bakhsh, JJ.) Crown Vs. Z.A. Suleri : PL.D.1952 Sind 18].
—S. 2—Bar Association — Resolution containing allegations against Chief Judge-Contempt-Contempt by Advocates -Serious view to be taken—Recantation--Humiliation involved sufficient. "Any act done or writing published calculated to bring a Court or a Judge of the Court into contempt, or lower his authority, is a contempt of Court. That is one class of contempt. Further, any act done or writing published calculated, to obstruct or interfere with the due course of justice or the lawful process of the Court is a contempt of Court. The former class belongs to the category which Lord Hardwicke, l.C. characterized as 'scandalizing a Court or a Judge'. That description of that class of contempt is to be taken subject to, one and an important qualification. Judges and Courts are alike open to criticism and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could o- would treat that as contempt of Court (1900) 2 Q B 36 ref. A Resolution of the Karachi Bar Association asserted that by inflicting undeserved insults and persistently treating "the members of the Bar in general and the displaced lawyers in particular in contemptuous manner, the Chief
Judge was making it impossible for advocates to present their cases adequately'"and held out the warning that in case of further repetition the Association "will be forced to take measures which it sincerely wishes to avoid." Held that there can be no question about the imputations and threats contained in the resolution being such as were calculated to lower the authority of the Chief Judge and this Court. It has not been argued and it would be impossible to argue that the matter published was merely a reasonable argument or expostulation against some particular judicial acts as being contrary to the law or to the public good. Lord Russel's word in the case above referred to, immediately following the passage which has been cited. "Now, as I have said, no one has suggested that this is not a contempt of Court, and nobody has suggested, or could suggest that it falls within the right of public criticism in the sense I have-described. It is not criticism; I repeat that it is personal scurrilous abuse of a Judge as a judge. We have therefore to deal with it as a case of contempt and we have to deal with it brevi manii," apply in the present case with at least as great a force as they did in that case. Offences of contempt by advocates have ordinarily to be regarded seriously. (In view, however, of unconditional apologies and categorical admissions by the advocates concerned that there was not the slightest justification for the allegations made in the resolution, and in view, further, of the early disassocialidn of one of the respondents from the resolution, and the humiliation involved in the recantation being sufficient punishment in the case of the other, notices of contempt were discharged in the case of both : [(Tyabji, C.J., Constantine, Vellani and Muhammad Bachal, JJ.), Crown Vs. A. Rafique : P.L.D. 1950 Sind 74].
—Administrative acts of high court— Criticism of, may amount to contempt.
Contempt can be committed in relation to an administrative act of a High Court. State Vs. Muhsin Tirmizev, PLD 1964 Lahore 434=16 DLR (WP) 177 (FB). (Ortcheson, J). (PLD 1959 Dacca 84Rel.on).
--S. 2—Attack by a judicial officer on fairmindedness or integrity of High Court acting in administrative capacity-Contempt.
Even when made in connection with a representation, any attack on the honesty or integrity of a judicial officer will be punishable in contempt. The same principle is applicable to an attack on the impartiality and fair mindedness of a High Court even when acting administratively. State Vs. Muhsin Tirmizey. PLD 1964 Lahore 434=16 DLR (WP) 177 (FB). (Ortcheson, J).
--S.2—Industrial Court—Court contemplated by the Section—When party may be held guilty of contempt of Court.
The industrial Court established under Ordinance (LVI of 1959) is a Court as contemplated by section 2 of the Contempt of Courts Act (XII of 1926) and any libel published against that Court, amounts to the contempt of the said Court, and as such, the High Court has jurisdiction to take cognizance of such contempt.
Publication of remarks such as "The Industrial Court of East Pakistan has not the capability of appreciating the problems of workers" and "These . Courts have proved to be the graveyards of workers and the system of judgment adopted was only for denial of justice," have clearly lowered the dignity of the Industrial Court in public estimation and specially before a very large section of workers and employers of the country who are directly interested in the affairs of the Industrial Court. This has not only the tendency to shake the confidence of the public at large in the administration of justice by the Industrial Court but has shaken the same. State Vs. S. M. Mobin, PLR 1064 Dacca 839 (DB). (Siddiky, J).
--S. --Justification of contempt—Not permissible—Facts on which justification is based are not to be considered by Court.
It is well settled that a plea of justification cannot be raised in answer to a charge of contempt. Therefore the Court would not inquire into the facts on the basis of which justifipation is pleaded by the party. State Vs. Muhsin Tirmizey, PLD 1964 Lahore 434=16 DLR (W.P. 177 (FB). (Ortcheson, J.).
--S. 2 (iii)--Jurisdiction of High Court—Barred only where contempt is punishable under Penal Code-Offence not so punishable as contempt—Jurisdiction of High Court is not barred.
Sub-section (iii) of section 2 of the Contempt of Courts Act, 1926 means that if contempt of Court was committed with regard to a Court subordinate to the High Court and the act which constituted that offence was punishable under the Penal Code, 1860 as a contempt of Court, the powers envisaged by the Contempt of Courts Act, 1926 shall not be exercised by the High Court. Subsection (iii) does not mean that if the act which amounts to contempt of Court is punishable under the Penal Code, 1860 not as "contempt of Court" but as some other offence under section 288 of the Penal Code, 1860, the jurisdiction of the High Court under the contempt of Courts Act, 1926 is ousted. Slate Vs. Abdul Aziz, PLD 1962 (W.P.) Lahore 335. (Shabir,J).
—S. 2—Lawyer—How must behave towards a Court—Respect to Court necessary.
A lawyer should never forget that however important in substance or principle a matter may be, which he is placing before the Court, he should never forget that his own dignity as a lawyer obliges Jiim to place it before the Court in the manner of submission, couched in the traditional language of courtesy that is due to the Court. He will find that any stand which he takes in support of a right principle will always gain in strength and effectiveness if it is supported by the appropriate courtesy. Rashid Murtaza Qureshi Vs; State, PLD 1966 S.C. 94=17 DLR (SC) 608. (Cornelius, CJ).
--It is the Counsel's duty to see that no statements be made to scandalize a Judge by imputing to him motive or judicial dishonesty or by holding up his conduct in court to ridicule. State Vs. M. Noman, (1964) 16 DLR 393 (FB). [Hasan,}).
-S. 2--Threat by party to Counsel of other party-- Contempt of Court-Sentence.
A thing done which is likely to interfere with the proceedings of a Court, though that thing may be a threat to a counsel engaged in those proceedings for one party or the other, amounts to contempt of Court. Therefore, where a party threatened the counsel of the opposite party, he was held to be guilty of contempt of court and was sentenced to a fine of Rs. 20/- and in default to imprisonment for fifteen days. State Abdul Vs. Aziz, PLD 1962 Lahore 335 (DB). (Shabir, J).
S. 2(l)--Ground of application to be specially stated for action answer—
In case of a charge of contempt of court, the party charged cannot be called upon to.anything not set out specifically in the grounds used before the courts at the time the rale is issued. The party concerned must know what are the points he has to answer. The court has to proceed very carefully and cautiously and it is not enough that because a rule is issued, it has to be determined in one particular manner, without the court examining the grounds upon which it is issued. (Amulya Chandra Vs. Satish Chandra, 1932 Cal. 255-35 C.W.N. 1267-33 Cr.LJ. 369-1361.C. 901.)
S. 2(3)--"Offence punishable under the Penal Code" means offence punishable as contempt. ' The prohibition, contained in subsection (3) of section 2, Contempt of Courts Act (XII of 1926) is limited to cases punishable under the Penal Code as Contempt of Court but not otherwise. The expression "offence punishable under the Penal Code" in section 2(3) does not imply offence of every description punishable under the Code : A.I.R 1935 All. 896 dissented from. [(Akram, Shahabuddin and Mohd. Sharif, JJ.). Abdur Rashid Vs. Mehr Falak Sher : PLD 1955 FC 98].
—The Lahore High Court has held that it could take cognizance of a contempt alleged to have been committed in respect of a Court subordinate to it, notwithstanding the provisions of s. 2(3) of the Contempt of Courts Act, as the words "where such contempt is an offence punishable under the Indian Penal Code" mean that the contempt must be punishable as a contempt under the Indian Code and not punishable only because it otherwise is an offence. (Bennett Coleman & Co. Ltd. Vs. G.S. Monga, (1936)
18 Lah. 34. The Patna High Court has held likewise. Superintendent and Remembrance of Legal Affairs, Bihar Vs. Murali Manohar Prasad, (1940) 20 Pat. 306.
All other Courts including the Judicial Commissioners' Courts can only take action for contempt of court under s. 228 of the Penal Code and s. 487 of the Code of Criminal Procedure. Venkatrao, (1922) 24 Bom. L.R. 386-46 Bom. 973.
-The Calcutta High Court had held that it had no jurisdiction to commit a person for contempt of a Criminal Court in the mofussil. Amrita Bazar Patrika, (1913) 17 C.W.N. 1253. 1282. But the Bombay High Court was of opinion that it had such power. Balkrishana Govind Kulkarni, (1921) 24 Bom. L.R. 16, 46 Bom. 592. The Allahabad High Court in earlier cases took the same view. Abdul Hasan Jauhar, (1926) 48 All. 711, F.B; An Advocate. (1928) 29 Cr. L.J. 801. But in a subsequent Full Bench case it laid down that no power to punish for contempt of an Inferior Court existed independently of the Penal Code and the Contempt of Courts Act. The inherent powers of the Supreme Court of Calcutta were not conferred on the Allahabad High Court by the Indian High Courts Act. 1861. (Mahant Shantanand Gir Vs. Mahant Basudevanand Gir, (1930) 52 All. 619, F£.
-Two members of the Municipal Committee who were not made parties in the injunction case which was filed for postponing the election of the Vice—Chairman of the Municipality were present in Court when the order of injunction was passed by the Munsif. They later on participated in the meeting and voted for Vice-Chairman's Election-Held: Though not parties in the injunction case they were guilty of contempt of court under Act XII
of 192.6. MA. Zaher Vs. Mainuddin (1976) 28 DLR (Appl. Dim.) 165.
S. 2(3)--The prohibition contained in subsection (3) of section 2 is limited to cases punishable under the Penal Code as Contempt of Court but not otherwise. The expression "offence punishable under the Code" in section 2(3) does not imply offence of every description punishable under the Code. 7 DLR (FC) 162 (at page 165)
—Provisions of the section will not be applicable when the offence committed is punishable under the Penal Code as contempt of Court. (1956) 8 DLR 656.
SECTION 3
Synopsis
1. Apology.
2. Committal when ordered.
3. Defence in contempt proceedings.
4. Delay in prosecution. .
5. Disobedience of order.
6. Initiation of proceedings.
7. Mens rea.
8. Newspaper report.
9. Sentence.
10. Transfer application.
(1) APOLOGY
(2) First accepted.proviso—Apology—When may be Before apology is accepted the following conditions must be fulfilled :
(a) the apology must be offered at the earliest stages of a contempt proceeding and not postponed till the end of the proceedings;
(b) the apology must be unconditional, unreserved and unqualified;
(c) the apology should be sincere and the outpouring of a penitent heart, and not half-hearted or for its mere sake or as a formality;
(a) if an apology is to be effective, attempts at justification of an act of contumely or contempt should be scrupulously avoided;
(b) if the charges are grave and amount to a flagrant defiance of Court authority or dignity, punishment will follow though the apology, if tendered in time, may soften or mollify the rigour of punishment. State Vs. Munawar Khan, PLD 1963 Peshawar 195(DB).
Lawyer not appearing as a witness in High Court because of professional engagement-Apology filed at earliest opportunity-Apology accepted. When a lawyer was summoned to appear before the High Court as a witness and he did not appear because he was engaged in a Sessions trial, whereupon a contempt of Court notice was issued to him. He submitted an apology at the earliest c T)portunity. The Court accepted the apology but bi "dened him with the costs of the Advocate-General fixed at Rs. 200. State Vs. Munawar Khan, PLD
1963 Peshawar 195 (DB).
Repetition of negligence leading to contempt-Apology may not be accepted. Where the publication is due to a repetition of negligence which has been condoned in the past an apology becomes little more than an idle form. Mushtaq Hussain Vs. Editor, Daily 'Dawn" PLD
1964 Karachi 367.
Knowledge of the Court's prohibitory order is enough to constitute contempt of Court. 8 DLR
(WPC) 15.
-S. 3--Contempt serious but highly technical-Apology by respondent-Lenient view to be taken : [(Muhammad Munir, C.J. and Rahman, ].) Lahore Improvement Trust Vs. Aziz Beg : PLD 1953 Lah. 579].
(2) COMMITTAL WREN ORDERED
Committal for contempt—Not to be ordered lightly-Ordered only when contempt is deliberate.
The power to commit for contempt of Court is not to be lightly used and should be reserved for cases where the contempt is deliberate and of such a .nature that committal is called for. In the present case all that can be said is that the respondents acted without due consideration. They have all expressed their regret to the court and we think that the matter may be left there. Sufficient has probably been said to prevent a similar situation arising in future. Mushtaq Hussain Vs. Editor Daily "Dawn" PLD 1964 Karachi 367.
(3) DEFENCE IN CONTEMPT PROCEEDINGS
Truth and justification of contempt-Not permissible defence in contempt proceedings. It is axiomatic in law that truth is no defence in a proceeding for contempt. It is equally well established that there is no defence of privilege in a case of contempt and although justification and privilege may be good defences
in cases of defamation there is nothing in law like justification of privileged contempt. State vs. Adam, PLD 1965 Karachi 45.
(4) DELAY IN PROSECUTION
Delay in prosecution caused by delay in supply by High Court office of translation of contemptuous passages in newspaper—Not proper. Even where delay in prosecution of the newspaper for publishing a news item relating to a subjudice matter was caused by the late supply of translation of news items by the High Court office, it was observed that this cannot excuse either the applicant or his Advocate for this inordinate delay of eight months in prosecuting these applications. Such delay would indicate lack of interest or seriousness on their part in pursuing the applications. Mushtaq Hussain vs. Editor, Daily "Dawn" PLD 1964 Karachi 367.
(5) DISOBEDIENCE OF
ILLEGAL ORDER, NO
CONTEMPT
Illegal order passed by Magistrate— Disobedience of order is not contempt..
Where a Magistrate passed an order without jurisdiction so that the order was a nullity and on the disobedience of the order, contempt proceedings were drawn against the police officer who had' disobeyed the order.
Held: A presumption attaches to orders of superior Courts that they are with jurisdiction, but no such presumption attaches to an order of a subordinate Court. Therefore, disobedience of the order which was without jurisdiction was not contempt of Court. Abdul Haleem vs. Qurban Hussain, PLD 1965 Lahore 570.
(6) INITIATION OF PROCEEDINGS
Contempt proceedings may be initiated on motion of private persons. Although contempt of the High Court is a matter between the Court and the party in contempt, proceedings in contempt must be allowed to be initialed by a motion made by private parties, because that is one of the ways in which cases of breaches of the Court's order may come to the Court's notice. But, at the same time, this liberty or privilege of private parties cannot be allowed to be abused and no person can be allowed to arraign others in a proceeding for contempt without exercising due care and responsibility. The High Court is and has always been jealous of its authority in public interest and will always continue to be so. It will regard persons who bring to its notice qase of violation of its orders as persons who aid in the case of the administration of justice. State vs. Adam., PLD 1965 Karachi 45.
--S. 3--Contempt of Courts Act (XII of 1926) (as adapted in Pakistan)~Court, what is—Commissioner appointed under Public Servants Court (Inquiries) Act (XXXVII of 1850) whether a Court-Penal Code (XLV of 1860), sections 19 and 20-Evidence Act (I of 1872),
S. 3--"Court" defined and explained. The respondent was a sub-divisional officer against whom complaints of misconduct and corrupt practices were received by the Government. District and Sessions Judge of the place was appointed Commissioner to inquire into the truth of the various charges under the Public Servants Inquires Act, 1850. The Commissioner felt difficulty in contacting the respondent and in communicating his orders to him. The appellant, who was a Deputy Secretary to the Government wrote a letter to the Commissioner which became the subject-matter of the complaint for an action for contempt. It was stated in the letter that the Government were anxious not to allow the respondent to adopt dilatory tactics and the Commissioner was requested to be vigilant against such tactics adopted by the respondent. The respondent moved the High Court to punish the appellant for contempt of the "Commissioner's Court." The High Court held that the Commissioner appointed under the Public Servants Inquiries Act 1850 was a Court subordinate to the High Court, the letter complained against amounted to a contempt of Court and that the appellant was guilty of such contempt. The appellant was accordingly sentenced. Held, the word "Court" was not defined in the Act and the expression "Courts subordinate to the High Courts" would prima facie mean the Courts of law subordinate to the High Courts in the hierarchy of Courts established for the purpose of administration throughout the country. The Commissioner appointed under the Public Servants Inquiries Act, 1850 is not a Court because the various provisions of the Act clearly show that the findings or reports of the said Court were not a definitive judgment or judicial pronouncement inasmuch as they were not binding and authoritative and lacked finality. A.I.R. 1954 Pat. 289 reversed. A.I.R. 1951 Panj. 49 overruled. 1931 A.C. 275; (1909) 8 C.L.R. 330; (1924) I.K.B. 171; 1950 S.C.R. 730 ; (1937) 2 K.B. 309; 1954 S.C.R. 1150: (1892) I.Q.B. 431; (1873) 8 Q.B. 255; (1875) ILL. 744; A.I.R 1954 Nag. 71 ref: [(Bhagwati, Sinha and ImamJJ). Brajnandan Sinha Vs. Jyoti Narain: P.L.D. 1956 S.C. (Ind.) 65].
(7) 'MENS RE A1
Intention and motive—Irrelevant in contempt proceedings. Motive and intention are irrelevant considerations in a matter of contempt. State vs. Adam, PLD 1965 Karachi 45.
(8) NEWSPAPER REPORT
Contempt by several newspapers—Only one cited in contempt petition-Purveyor of news item dropped by counsel for petitioner-Conduct of counsel disapproved as discriminatory. Where the petitioner for contempt cited only one out of the several newspapers which has published the news item in contempt proceedings, and later on one of the respondents the person who had supplied the news item was dropped from the proceedings, it was observed that such-discrimination in contempt matter has been frowned upon by Courts. Mushtaq Hussain vs. Editor, Daily "Dawn", PLD 1964 Karachi 367.
News of matters 'subjudice' published by newspaper--Contempt--Apology tendered cannot wash out contempt-Serves as mitigating circumstance.
Where a news item regarding a subjudice matter was published by a newspaper it was held that the publication amounted to a contempt of Court, but the court took into consideration the apparent promptitude with which the newspapers published apologies in the issues of their papers after receiving notice of contempt served on them and also the fact that the respondent newspaper through their Editors, Printers and Publishers filed either affidavits or written statements in this Court expressing their sincere regret for the publication in question and tendering their unconditional and unqualified apologies to this Court. It was held that such apologies cannot serve to completely wash out the guilt of the respondent newspapers. But they certainly can be considered as mitigating circumstances Mushtaq Hussain Vs. Editor, Daily "Dawn" PLD1964 Karachi 367.
News item regarding "subjudice" matter-Apology must be made to court. Where notices for prosecution for contempt were issued to the newspapers and they tendered apologies to the Court. Held: Such apologies in matters such as these are due to the court and not to the person who is the victim of the article in question. Mushtaq Hussain vs. Editor, Daily "Dawn", PLD 1964 Karachi 367.
(9) SENTENCE
Where a District and Sessions Judge was guilty of gross contempt of the High Court. Held: For an offence of this nature a substantial term of imprisonment would not, in my opinion, be uncalled for but keeping in view the age of the respondent I would sentence him to imprisonment till the rising of the court and a fine of Rs. 2,000. State Vs. Mushin Tirmizev, 16 DLR (W.P.) 177 (FB).
—Sentence—Lady contemncr tendering apology-Gross contempt—Sentence of fine of Rs. 100. .
Where a lady had filed an affidavit which amounted to gross contempt of the court but she made unqualified apologies and was sincerely penitent. The Court convicted her for contempt and then sentenced her to a fine of Rs. 100 and in default simple imprisonment for one week. State vs. Adam, PLD 1965 Karachi 45.
Threat by party to Counsel of other party--Contempt of court-Sentence. A thing done which is likely to interfere with the proceedings of a Court, though that thing may be a threat to a counsel engaged in those proceedings for one party or the other, amounts to contempt of Court. Therefore, where a party threatened the counsel of the opposite party, he was held to be guilty of contempt of court and was sentenced to a fine of Rs. 20/- and in default to imprisonment for fifteen days.-State, vs. Abdul Aziz, PLD 1962 Lahore 335 (DB).
Case under section 500 of Pak. Penal Code and suit for damages for defamation pending against an Editor of a magazine—one-sided version of litigation published in the magazinc.-Publications revealing definite attempt on the part of the Editor to create atmosphere favourable to himself and prejudicial to complainant-contempt of Court, 5 PLD (Lah) 579.
10. TRANSFER APPLICATION
Allegation of bias in transfer application against Presiding Officer of Trial Court before High Court—Not contempt—Duty of lawyer drafting application-Extent of responsibility of lawyer for allegations made.
Where allegations of bias in the Presiding Judge of the trial Court are made in a transfer application made to a Superior Court it cannot be said that application would amount to contempt of Court. When the allegations are wild it is for the counsel, as an officer of the Court, to take normal care to satisfy himself that they are not entirely without foundation. In applications for transfer of cases the Court is not called upon to testify whether the allegations against a particular Tribunal stand affirmed with any degree of certainty. The scope oT inquiry is limited to the finding th'at circumstances are shown which can form the basis of creating a reasonable apprehension in the mind of the litigant that he will not have a fair trial—a conclusion which otherwise may be unjustified. This being the scope of that inquiry, I do not think how a counsel could be fixed with greater responsibility of sifting facts and then to take a decision in advance for the client whether these circumstances would or would not justify the grievance which he wishes to be examined by the superior Tribunal. State Vs. Badaruddin, PLD 1962 Karachi 166-PLR 1962 (I) W.P. 867.
Contract Act (XI of 1872)
S. 23—When a criminal prosecution has been withdrawn on the accused undertaking to execute a certain bond with certain terms, the bond executed will be unlawful and the person in whose favour the bond has been executed will derive no benefit from it. Probodh Chandra Vs. Abdul Rahman (i960) 12 DLR 459=(1960) PLD (Dae) 983.
—Stifling of prosecution-composition even of non-compoundable offences not unlawful when the compromise was an acknowledgment of existing civil liability. Akbar AH Khan Vs. Elahi Buksha Bepari (1960) 12 DLR 854.
CONTRADICTING STATEMENT
Contradiction in the statement of a witness-is a task of appreciation for the trial and appeal court. Contradiction in the statement of witness, either with his own statement or with the statement of another witness, a task of appreciation of evidence, and therefore, it is within the jurisdiction of the trial Court and the Court of appeal on fact, to deal with the question, No doubt, there is certain rule of prudence governing the case of contradicting statement. Moyezuddin Vs. The Slate (1979) 31 DLR (AD) 37.
CONTRADICTORY STATEMENT
—Contradictions affecting most important witnesses in murder case—conclusions of Trial Court—Appellate Court should be slow to upset. PLD 1953 FC 93.
—Self contradictions in evidence of important witnesses—ground for leave to appeal to Supreme Court. PLD 1956 FC 171.
V t
-Self contradictions in evidence of witness in Criminal Proceeding—Court of fact to adopt one part or reject the whole by a rule of prudence. PLD 1956 FC 171.
-Contradictory statements of witness before committing Magistrate and Session trial—value of—completely ignoring both statements not an invariable rule. PLD 1953 Lahore 495.
—Court which has seen and heard witnesses-Has incalculable advantage in appraising evidence in Appellate Court where statements of witnesses are irreconcilable and self - contradictory. PLD 1952 PC 139.
CONTROF OF ENTRY ACT ( LV OF 1952)
Sees. 3 and 4—Mere submission of an application ,for citizenship is not sufficient to exonerate any one from violations of the relevant rules under the Pakislan (Control of Entry) Act. The contention that because the respondent had applied for a Pakistan citizenship was sufficient to prevent him from being prosecuted under the said Act is not tenable. There is no principle recognised in international law which would enable a person by his own volition and by his own act regardless of the will of a State to acquire or terminate a nationality merely by his own choice. A nationality can neither be acquired except with the will of the State. The State has the right even to deprive a national of his nationality should the occasion arise. Supdt. and Remembrancer of Legal Affairs, Govt. of E. Pak. vs. Amalendu Baul (1960) 12 DLR 55: I960 PLD (Dae) 329.
S. 3(6)--Read with Ordinance XXX of 1955. Sub-section (6) applies to the Indians who came into Pakistan prior to 22.10.1955. The language of sub-section (6) of section 3 of the Act does not leave any doubt that the provision of that section were introduced to cover not only the cases of Indians who would come into Pakistan on valid travel documents after the 22nd August, 1955 but also the cases of those Indians who had come into Pakistan prior to the 22nd August, 1955 on valid travel documents and over-stayed the period mentioned in the visa. Supdt. and Rememb. of L. Affairs vs. Sunil Kumar Daw (1962) 14 DLR 705.
S. 4--A conviction under section 4 of the (Control of Entry) Act cannot validate an order of confiscation of seized smuggled goods under section 7(1) of the Land Customs Act, without a charge under the latter Act. Baidyanath Sikdar vs. State (1956) 8 DLR 447.
S. 6 read with S. 3~Not attracted where the accused holds valid passport and visa, but has tampered with contents (1950) 2 DLR (PC) 151.
CONVICTION
—Accused convicted by Sessions Court under S. 302, Penal Code—Conviction altered on appeal to one under S. 201, Penal Code—See Criminal Procedure Code (V of 1898), S. 237: PLD 1950 Bal. 1.
--Accused's statement in Court should be taken into consideration in its entirety if conviction is to be based solely on such statement-See Criminal Trial: PLD 1952 F. C. I.
--Alteration of conviction-Powers of Appellate Court are very wide subject to condition that altered conviction should not be such which could not have been recorded by trial Court-See Criminal Procedure Code, S. 423 : PLD 1952 Lah. 609.
-Basing conviction on circumstantial evidence—Principle to be followed--See Criminal Trial: PLD 1950 Lah. 288.
-Blood - stained handle of hatchet-Recovery at pointing out of accused-Insufficient by itself to support conviction for murder: [(Muhammad Munir, C. J., Akram, Shahabuddin and Muhammad Sharif, JJ.) Siraj Vs. Crown : PLD 1956 F. C. 123].
-Conviction cannot be based on extrajudicial confession alone especially where it has been retracted by the maker thereof- Seeconfession : PLD 1954 Lah. 710.
-Charges and conviction under Ss. 302, 307 & 149, Penal Code by trial Court-Conviction under Ss. 302 & 307 by Appellate Court-Prejudice to the accused-See Penal Code, S. 149 : PLD 1956 S C
-Charge under S. 147, Penal Code on ground of common object of accused to steal paddy seedlings — No mention of Common Object of accused to assault nor had accused any notice of offence under S. 323, Penal Code-Conviction under S. 323, Penal Code, held, illegal-See Criminal Procedure Code (V of 1898), S. 237: PLD 1951 Dacca 128.
Charge under Ss. 302/149, Penal Code — Two necessarily fatal injuries ascribed in evidence one to each of two accused — Both accused could be rightly convicted either individually of murder or by the application of S. 34, Penal Code, although they were not charged with same-See Penal Code, S. 749: P.L.D 1956 F C 425.
--Circumstantial evidence — No basis for conviction unless incompatible with any other reasonable hypothesis than the guilt of the accused-See circumsuinnal evidence: P.L.D. 1954 Lah. 710.
Confession of co-accused-Whether
conviction can be based on — See Evidence Act, S. 3 etc. : P L D 1956 S C (Ind.) 186.
—Confession being sole support for conviction-Not put to accused— Prejudice-Conviction set aside-See Criminal Procedure Code (V of 1898), S. 342 : PLD 1956 S C (Pak) 300.
-Confession not put to accused by either Committing Magistrate or Sessions Judge — Conviction unsustainable — See Criminal Procedure Code (V of 1898), S. 342: P L. D. 1952 Lah. 374.
--Confession of co-accused cannot be. made foundation of conviction — See Evidence Act, S. 30 :P LD 1949 P C 90.
—Contempt of Court-Order of fine and imprisonment in default — Order amounted to "conviction" of person held guilty of contempt^Laws of Nigeria, Ch. 229, S.
10. An order for payment of fine and for imprisonment in default was made by a Judge in the Supreme Court for conduct of a barrister adjudged by the judge to amount to contempt of Court of a criminal nature. Held such order was a "conviction" within the meaning of S. 10 of the Nigerian Ordinance : [(Lord Tucker) Joseph Orakwne Izuora Vs. Queen :PLD 1953 P C46.]
—Conviction—Must be based on evidence recorded in Trial Court—Any other material sought to be used against accused must be placed on record after complying with S. 428, Criminal P.C.-Admissioh contained in petition for revision cannot be taken into consideration.
Per Abdul Rashid, C. J.— The admission contained in the petition for revision preferred by accused in the High Court at Dacca cannot be taken into consideration in order to fill up the gaps in the prosecution case or to support a conviction. The conviction must be based only on the evidence that was recorded in the Trial Court. If any other material is sought to be used against the accused person, such material should be placed on the record after complying with the provisions of section 428 of the Code of Criminal Procedure. Per Cornelius, J. — In the ordinary course, any matter of fact, relevant to a point for determination in the case, should be.established as evidence in the proceedings, in one of the modes known to law. In the absence of a proper statement, made on oath, the adoption of the averments in the revision petition as proof relevant to the determination of the petitioner's case, was clearly irregular. Conviction based on reasons which are not supported by admissible evidence is liable to be set aside: [(Abdul Rashid, C.J., Akram and Cornelius, JJ.) Fazlul Qader Chaudhury Vs. Crown: P.L.D 1952 F C19.]
--Conviction—Statement of accused sole basis for—Statement should be read as a whole along with the exculpatory part of it unless the latter is shown to be false by other evidence. Where there is no other evidence to show affirmatively that any portion of the exculpatory statement of the accused is false, the Court must accept or reject his statement as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible. In the absence of any positive evidence to show that the statement of the accused is false, he cannot be convicted merely on the basis of his version being highly improbable and incredible. A I R 1931 All. 1 and A I R 1935 Lah. 671 ref: [(Changez, J.) Muzaffar Khan Vs. The State : PLD 1956 Lah. 1045.]
-Conviction based on sole testimony of expert—Not safe— See Evidence Act, S. 45: PLD 1956 Kar. 234.
--Conviction based solely on admission of accused—Accused's attention to such admission, or his explanation for same, not called for by Court during accused's examination—Unfair-Violation of principles of natural justice—See Criminal Trial:, PLD 1952 F C 1.
—Conviction based on testimony of child witness—Corroboration whether essential-See Evidence Act, S. 118 : PLD 1956 Lah. 840.
—Conviction based solely on strength of retracted confession—Dangerous-See Criminal Trial: PLD 1952 Bal. 10.
—Conviction by Sessions Judge on evidence partly recorded by him and partly by his predecessor—in-office—Trial illegal—See Criminal_ Procedure code , S. 350 : PLD 1950Lah. 244.
—Conviction cannot be based on extra judicial confession not properly proved—See Criminal Trial: P L D1950 B J 34.
—Conviction cannot be based on memorandum of identification prepared by MagistrateSee Criminal Trial: P L D 1952 Lah. 55.
__Conviction on basis of confession of co-accused-See Evidence Act, S. 114 etc. : P.L.D. 1949 Bal. 6.
—Conviction recorded under one of, two offences charged—Mere omission to record conviction or acquittal under the other offence not necessarily to be deemed to amount to acquittal of that other offence—Appellate Court may convict and sentence accused under such offence—See Criminal Trial: P L D 1955 Sind230.
-Criminal Procedure Code (V of 1898), S. 288-Statements transferred under section—When safe to accept as true-Court when to exercise caution while basing conviction on such statements—See Criminal Procedure Code (V of 1898), S. 288—P L D1956 Lah. 657.
--Criminal Procedure Code (V of 1898), S. 342-Non-compliance causing prejudice to accused-Conviction to be set aside— See Criminal Procedure Code(Vof 1898), S. 342: PLD 1955F C 129.
--Criminal Procedure Code, S.403—Basis of section-Former Court must have been competent to
record a verdict of conviction or acquittal—If former trial was without sanction Court was not so
competent-SeeCriminal Procedure Code, S. 403 PLD 1949 P C 108.
—Decision of Court must not be based merely on the ground that prosecution version is more probable than defence version—See Criminal Trial: PLD. 1954 F C 300.
—Element of doubt in regard to which of several offences committed—Charge under S. 302/149, Penal Code—Conviction of two accused under S. 302 legal—See Criminal Procedure Code (V of 1898), S. 236, etc. : P L D 1956 S.C. (Pak.) 440.
—Evidence of prosecution witnesses wholly rejected as unreliable so far as most of accused were concerned—Unsafe to convict remaining accused on same evidence in absence of confirmatory circumstance—See Criminal Trial: P L D 1954 FC 84.
—Extra-judicial confession[Before person taking prominent part from very beginning in prosecution of case against accused—Utmost care and caution necessary in basing conviction solely on such confession- See confession : P L D 1952 F C IB.
—Failure to question accused on main evidence against him-No suggestion of prejudice from counsel—Conviction upheld— See Criminal Procedure Code (V of 1898), S. 342: PLD 1956 FC143.
—Initial complaint disclosing offence under S. 379, Penal Code—Whether conviction under S. 427, P.P.C. maintainable—See Penal Code S. 379, etc.:PLD 1956Dacca 140.
..Interference by Supreme Court in cases of conviction__See .Constitution of India. Art 136: PLD
1956 S C (Ind.) 327.
—Killing in right of private defence or under grave and sudden provocation—Conviction cannot be had under S. 304(1) Penal Code (XLV of I860)-, See Government of India Act 1935, S. 212: PLD 1953 Lah. 588.
—No clarification from the record whether Judge agreed or not with" view of assessors, who found accused guilty—Amounting to no conviction by Judge-Sentence and conviction quashed- See Criminal Procedure Code (V of 1898), S. 309: PLD 1947 PC 220.
-Opinion of assessors in respect of all charges not takcn-Conviction whether legal—See^ Criminal Procedure Code (V of 1898), S. 309: P LD 1956.SC (Ind.) 197.
—Penal Code, Ss. 120A and 120B—Several accused—Whether one can be con victed> when the rest acquitted—See Penal Code, S. 120A, etc.: P. L.T>. 1956 S. C. (Ind.) 215.
—Penal Code, Ss. 232 and 235-Separate convictions and sentences under the two sections are illegal—See Penal Code, S. 232, etc. : P L D 1949 Lah. 179.
—Point on which conviction is sought to be based—Must be specifically put to accused to enable him to explain allegations made against him— Offence under S. 409, P.P.C.-Amounts alleged to be misappropriated forming basis of conviction must be specifically put to accused for being explained-Omnibus question on total amount misappropriated not enoughs—See Criminal Procedure Code (V of 1898), S. 342 : P L D 1956 Kar. 310.
— Powers of Appellate Court to alter conviction—See Criminal Procedure Code, S. 423: PLD 1952Lah. 11.
—Prosecution evidence disbelieved-Conviction whether could be based on defence evidence or confessional statement—Whether exculpatory part of such evidence could be left out of consideration— See Criminal Trial: PLD 1954B J9.
—Prosecution version implicating innocent persons from stage of F.I.R.—Only eye-witness, of tender age and servant of deceased—Held, it was unsafe to maintain convictions—See Criminal Trial PLD 1956FC 31
—Retracted confession can form basis of conviction if true- See confession : PLD 1951 Azad J & K 47.
•—Sentence—Offence of receiving stolen property under S. 411, P. P. C.— Property alleged to be part of 3 different thefts of different dates but recovered from accused at one and the same time-^ In the absence of evidence to prove that stolen articles were received at 3 different times, 3 separate convictions and sentences cannot be sustained- Criminal Procedure Code (V of 1898), S. 35. In the absence of any evidence to prove that the stolen articles were received by the appellant not at one and the same time but at different times separate convictions and sentences cannot be legally sustained. Appellant was convicted under section 411, P.P.C., on three counts and was sentenced to rigorous imprisonment for two years under each count, the sentences to run consecutively. No evidence was adduced as to when the stolen articles were received by the appellant. The property recovered from appellant at one and the same time
was alleged to belong to 3 different thefts of 3 different dates and belonging to 3 different persons.
Held, that the separate accounts for receiving stolen property should be treated.as a single offence although the thefts relating to them may have taken place on different dates in different places and regarding properties belonging to different persons and the appellant should be convicted of only a single offence under section 411, P.P.C. 50 Cat. 594 and A I R 1925 Pat. 20 ref: [(Muhammad Munir, C.J., Akram and Cornelius, JJ.) Rafiquddin rt.Crown :PLD 1955 F C 183.
—Separate sentences for convictions on separate charges, not passed—Irregularity is curable under S. 537 (a)-s«Criminal Procedure Code (V of 1898), S. 35 etc.: PLD 1949Lah. 179.
'
—Several accused tried-Conviction under S. 302 read with S. 34, Penal Code when all except one acquitted—Conviction whether maintainable-See Penal Code, S. 302, etc. : P L D 1956 S C (Ind.)59.
—Stolen property found in possession of various accused-Subject-matter of more than one theft-Clause (f) S. 293 Criminal P. C. not attracted—Joint-trial held illegal—Conviction quashed—See Criminal Procedure Code (V of 1898), S. 239 (0 : P L D 1950 Lah. 348.
—Stolen property found in public place on 1 Dinting out of accused-—Unsafe to convict solely on such pointing out—See Evidence Act, S. 27 : P L D 1951 Bal. 30
--Conviction, without discussion and consideration of evidence—Can not be sustained. Ahmed AH Vs The State (1968) 20 DLR 303 Ref. Criminal Trial.
-Conviction, should be based on evidence and noLon conjectures or probabilities. Md. Luiman Vs The State (1969) 21 DLR 461 Ref. Criminal Trial.
—Conviction—Omission to record Conviction recorded under one of the two offences charged. Mere omission to record conviction or acquittal under the other offence not necessarily be deemed to amount to acquittal of that other offence. Appellate court may convict and sentence the accused for such offence (1955) PLD (Sind)230.
Conviction on matters not an record-Illegal some statements were incorporated in the petition of revision which was moved on behalf of the accused before the High Court. These statements did not form part of the record of the case on which was based the conviction of the accused by the Trial Court. The learned Judges of the High Court in arriving at their conclusion that the accused was guilty of the charge he was called upon to answer accepted and relied on these statements made in the petition.
Held: The admission contained in the petition for revision in the High Court can not be taken into consideration in order to fill up the gaps in the prosecution case or to support a conviction. The conviction must be based only on the evidence that was recorded in the Trial Court. Fazlul Quader Vs. Crown (1952)4 DLR (FC) 104
Conviction recorded under one or two offences charged.--Mere omission to record conviction or acquittal under the other offence not necessarily be deemed to amount to acquittal of the other offence-Appellate Court may convict and sentence the accused under such offence (1955) PLD (Sind) 230
—Conviction-on one count a person is acquitted and on another count he is convicted. In an appeal only against acquittal, conviction on the other count can not be touched and so the vice-versa. Md, Amir Hossain Vs. The State (1976) 28 DLR 371.
--Conviction of several accused on a general finding of theft without consideration of each individual case can not be upheld. Afel Khan Vs. State (1977) 29 DLR 3.
-The order sentencing accused to undergo R.I. in default of payment of fine is bad in Law. In such a case the proper course is to impose simple imprisonment. Nizamuddin Mia Vs. The State (1974) 26 DLR 350.
—Conviction on vague allegations not supported by any evidence showing guilt of the accused is bad in Law. Golam Kibria Vs. Khulna Bakery Sramik Union (1980) 32 DLR 138.
—Conviction of several accused persons on omnibus statements of P.W. - Can not be maintained. AH Akbar Khan Vs. State (1982) 34 DLR 94.
Conviction on high probabilities. Conviction sljould be based on evidence and not on conjectures and probabilities. In a trial for murder of the accused's brother the trial court found the prosecution witnesses making deliberate attempt to damage the prosecution case and having arrived at the conclusion that the accused was guilty of murder convicted and sentenced him to death and in convicting the accused the court relied on the high probabilities inferred from evidence with the observation that "the court is, therefore, not bound to base its findings on evidence alone but has to see to the high probabilities regarding the existence or non-existence of a fact after considering the matters before the Court." The High Court upheld the conviction but commuted the sentence of death to transportation for life.
In a petition for special leave to appeal the Supreme Court observed:
"A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjecture and probabilities cannot take the place of proof. If a case were to be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of I'benefit of doubt" to an accused person which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the Supreme Court, will be reduced to a naught". Md. Luqman Vs. The State (1969) 21 DLR 461.
CORROBORATION
The circumstance need not be such that it can, of its own probative force, bring home the charge to the accused. It should, however, be a circumstance which points to the interference that the particular accused whose case is being considered did participate in the commission of the offence. The force that such circumstances should possess in order that it may be sufficient as corroboration must depend on the particular circumstances of each case. However, the circumstance itself must be proved beyond all reasonable doubt. Niaz Vs. State (1960) 12 DLR (SC)289.
--Corroboration of a confession is sought for two things: Occurrence and the identity of the participants. State Vs. Badsha Khan (1958) 10 DLR 580. ,
—One piece of weak evidence requiring corroboration cannot corroborate another weak evidence. Wazir Vs. State (1961) 13 DLR (WP) 5.
-A statement made very soon after the occurrence excludes a hypothesis of implication of innocent persons and may, therefore, be used as corroboration. Niaz Vs. State (1960) 12 DLR (SC) 289.
To what extent permissible when there is a conflict in evidence between witnesses—Evidence was led that 'A1 & 'B' saw the occurrence of murder. They being interested persons their evidence was sought to be corroborated with the plea that soon after the occurrence they spoke about the occurrence to one 'K'. In cross 'A' and !B' denied that they spoke to 'K' about the occurrence. The question was whether it can be said that the statement of 'A' and 'B' made about the time of occurrence is corroborated 'by'K1. Held: In some exceptional cases even in the face of the 'denial of the witness who is said to have made the statement, the previous statement may be used as corroboration, but normally this should not be done. Niaz Vs. Slate (1960) 12 DLR (S.C) 289.
-Confessional statement against co-accused requires corroboration—When a confessional statement is intended to be utilized against a co-accused, but even then the nature of corroboration required is what has been indicated in the case of Ashraf Vs. Crown 8 DLR (FC) 105. State Vs. Badsha Khan (1958) 10 DLR 580 (1959) PLD (Dae.) 276.
—Courts should be very careful in making use of the confession of a co-accused as corroboration of an approver's testimony, and the probability of the confession having resulted from a previous concert should be excluded before it can be used for corroborating the approver. Rafiq Ahmed Vs. State (1959)11 DLR (SC) 91.
--Necessity of corroboration of evidence of interested persons. If the number of accused persons mentioned by interested persons is exaggerated, his (i.e. the interested person's) word, cannot be made the basis of conviction and the Court will have to look for some additional circumstance which corroborates his testimony. Niaz Vs. State (I960) 12 DLR (SC) 289.
-In cases where interested witness charges only one person with the commission of an offence, or where the number of persons whom he names does not exceed that which appear from independent evidence the
-It is not safe to act upon a retracted confession without corroboration. But when that corroboration is sought to be made by the evidence of a person whose evidence is unacceptable in law, it is no corroboration at all. Sabjan Bibi Vs. Stale (1957) 9 DLR 473.
-Confession of the approver recorded under sec. 164, Cr.P.C. is admissible for the purpose of corroborating the evidence given by him at the trial. The admissibility of the statement for the purpose of corroboration would depend upon whether it was made about the time when the offence took place or before legally competent authority. Ibrahim Bhak Vs. Crown (1955) 7 DLR (FC) 123.
(Held by majority) : For corroboration of the approver's evidence it is not necessary to prove by independent evidence that the accused committed the crime, but it is enough if there is reliable evidence showing that that part of the approver's testimony which implicates the accused in the commission of the crime is true. Ishaq Vs. Crown (1955) 7 DLR (FQ37.
(Disagreeing from the above majority view): Evidence in corroboration must be by an independent testimony which affects the accused by connecting or tending to connect him with the offence. In other words, it must be evidence which confirms in some material particular not only the evidence that the crime has been committed but also that the accused committed it. Ishaq Vn. Crown (1955) 7 DLR (FC) 37. (Page 53, Lrh col.)
-The evidence of an accomplice must be confirmed not only as to the circumstances of the crime but also as to the identity of the accused. .Ishaq Vs. Crown (1955) 7 DLR (FC) 37. (at page 58)
(In the above case the prosecution contended that the evidence regarding the recovery of the dead body by the accused's pointing out the spot where the dead body lay buried is sufficient corroboration of the approver's story that the accused participated in the murder.)
Held (By majority) : This contention must prevail. -(By minority; From the facts of accused's knowledge of the place where the dead body was buried, so much of the approver's statement is corroborated as it concerned with the transference of the body from the bed of the canal and nothing beyond that and, therefore, he can be held guilty under section 201, P.P.Code. Ishaq Vs. Crown 7 DLR (FC) 37.
Where accomplice is a giver of bribe—
The rule of the Court which requires corroboration of the evidence of an accomplice as against each accused, if it applies at all, applies with very little force to a case in which the accused is charged with extorting a bribe from other persons. The objections which usually arise to the evidence of an accomplice do not really apply where the alleged accomplice, that is, the person who pays the bribe, is not a willing participant in the offence, but is really a victim of that offence. In cases of this kind, a slight corroboration may be sufficient to induce the Court to rely upon his evidence. Abdul Bari Vs. Crown (1955) 7 DLR 457 (462,r-h Col.)
—Approver's statement.—The rule as to corroboration of approver's statement applies also when such statement is used against him at his own trial after forfeiture of pardon. 7 PLD (Lah.) 375.
—Entries in a book of accounts.-Where entries in a book of accounts (of a firm of partners) are sought to be relied on as corroborating as witness's deposition in Court, the book not being a private book, the entries made in such book can be accepted as corroborative evidence of the oral testimony of the witness. Makhan Lai Vs. Crown (1950) 2 DLR 223.
—The admissibility of the confessional statement for purposes of corroboration would depend upon whether it was made about the time when the offence took place or before any authority legally competent to investigate the fact. Ibrahmlm Bhak Vs. Crown (1955) 7 DLR (FC) 123 (129)
--The rule as to corroboration of accomplice's evidence is that it is to be corroborated in material particular, (e.g., the persons mentioned by him participated in the offence).~It is not necessary that there must also be corroboration of that part of the story of the accomplice which he implicates himself. Israil Vs. State (1957) 9 DLR 416.
-Where the statement relates to two separate offences committed at different times, in pursuance of a conspiracy, the corroboration of the statement regarding one offence cannot be corroboration regarding the other. 2 PLD (Lah.) 507.
-If a Court believes a confession, judicial or extra-judicial, retracted or not retracted, to be voluntary and true, it can convict the accused on its sole basis. At the same time Courts have always treated extra-judicial confessions as suspicious evidence and have emphasized the necessity of great care and caution in acting upon them in the absence of corroborative evidence. But a conviction based on an extra-judicial confession is not an illegality. Nawab Din Vs. Crown 2 PCR 282.
Retracted confession requires to be corroborated for conviction of a co-accused. State Vs. Aftabuddin (1956) 8 DLR 554 (559)
—Evidence of one accomplice docs not corroborate the evidence of another accomplice. Alt Sher Vs. Crown 7 PLD (BJ.) 1.
—Corroborative evidence essential to show that confession was not only made but also voluntarily made and true. Abdul Latif Vs. Crown 4 DLR (FC) 431 (at page 433).
—Conviction cannot be based on extra-judicial confession specially where it has been retracted unless such confession has been corroborated. Zahid Hossain Vs. Crown 6 DLR (WPC) 225 (at page 229)
—Support by corroboration is necessary in relation to an extra-judicial confession which has been retracted. Where the proof of making confession (retracted) is not free from blemish and the Court is still inclined to believe that the confession was made the necessary condition of such belief must be that there should be corroboration from independent sources which itself tends to implicate the accused. Qutba Vs. Crown (1954) 6 DLR (FC) 126 (at page 135, left-hand col.)
—Corroboration in regard to extra-judicial confession which has been retracted is necessary. Abdul Latif Vs. Crown (1952) 4 DLR (FC) 431 (at page 433 right-hand col.)
—Confession as against a maker himself is enough to support a conviction, even if not corroborated, if it is believed. State Vs. Aftabuddin (1956) 8 DLR 554 (at Page 559)
—Independent corroboration of the testimony of the approver that he himself took part in the crime is not necessary. Fazal Dad Vs. Crown (1955) 7 DLR (FC) 176, at Page 178 right-hand col.)
Held : (by majority)—Corroboration must be such as would remove the doubt that the accused has been falsely implicated. Ashraf Vs. Crown (1956) 8 DLR (FC) 105 (at page 107 right-hand col.)
—(Dissentient view) In the statement of the rule relating to corroboration in criminal cases it has never been held that corroborative evidence should itself be sufficient for conviction. Even in cases where- as a
matter of law corroboration is required, all that is insisted upon is that the corroborative evidence should tend to show that the witness's evidence that the accused took part in the crime is true. Ashraf Vs. Crown (1956) 8 DLR (FC) 105 (at page 107 right-hand col.)
—If conviction is based on the sole evidence of confession, it must be examined in toto; but when confession is partly corroborated by other witnesses, Court is right in accepting only such portion as is consistent with the prosecution story and rejecting the remainder. 6 PLD (Lah.) 309.
—Statement of an interested witness though not usually accepted without corroboration, yet it is not an inflexible rule. Corroboration docs not necessarily mean 'words' of an independent witness—Corroboration by an eye-witness is not necessarily of same probative value as in the case of an accomplice. Corroboration by circumstances may be inferred from the number of culprits as consistent with the kind of crime and the persons named were expected to join in attack—Practice of the Supreme Court as to interfere with appreciation of evidence by the High Court. Nazir Vs. State (1962) 14 DLR (SC) 159 = (1962) PLD SC 269
—Where corroborative evidence absent evidence of the victim woman may be relied on in circumstances as where such evidence can be relied.
The judge warned jury that they ought not to convict the prisoner upon the evidence of the boys unless it was corroborated in some material particular affecting the accused, but told them that the above mentioned letter afforded evidence which they would be entitled to find to be sufficient corroboration. The jury found the prisoner guilty. The Court of Criminal Appeal dismissed the Appeal. Lord Chief Justice of England delivering the Judgment of the Special Bench upheld the conviction. In this case the letter was considered to be sufficient corroboration. Abdul Quddus Vs. State (1983) 35 DLR 373.
Corroboration evidence—need not be direct connecting the accused with the crime-circumstantial evidence may serve the purpose— caution which court and jury should observe in case of corroborated evidence in sex offences. Abdul Quddus Vs. State. (1983) 35 DLR 373
Documents produced by the accused may in fact amount to a corroboration of the statement of the victim girl. Abdul Quddus Vs. Stale. (1983) 35 DLR 373
Held: Although the eye-witness narrated the occurrence to PW 1 a bit late, the evidence of PWI may be used as a corroborative evidence in the case. The State Vs. Badiqzzaman (1973) 25 DLR 41
Corroborative Evidence—When some prosecution witnesses alleged to be eye-witnesses of the actual occurrence are found not to have seen the occurrence, it is an error of law to place reliance on their evidence treating the same as corroborative evidence. Further, if there is no primary evidence to prove the actual incidence of the offence, it is a misnomer that there could be any corroborative evidence since nothing is established which might be the basis of a corroborative evidence. Mabasir All Vs. Stale, (1972) 24 DLR 103.
COURT
Court, not to assume role of a prosecutor.
Magistrate trying a criminal case acts as an arbiter between the parties. He is the Judge in the case and not the investigating agency. He is not to abandon high place of an impartial arbiter, and assume role of a prosecutor. Dr. M. Abdul Sami Vs. State (1962) 14 DLR (W.P.) 1 : (1962) PLD (Lah)271.
—Court and bad faith—Magistrate issuing in the first instance non-bailable warrants against plaintiff by way of show-cause notice for alleged offence under section 182 P.P.C.—Procedure adopted by Magistrate is extraordinary and is a proof of "badfaith." A.K. Khalid Vs. Khan Ghulam Qadir Khan (1962) 14 DLR (W.P) 25: (1962) PLD (Lah) 411.
\
—Courts, All Courts are subordinate to the High Court and the Law laid down by this court is binding on them. Mono Ranjan Dev Vs. State (1967) 19 DLR 522.
-Revenue Officer functioning under section 19(1) of E.B. State Acquisition and Tenancy Act (XXVIII of 1951) is not a Court. Md. Kafiluddin Vs. State (1962) 14 DLR 425.
-Revenue Officer holding enquiry or hearing an appeal in a mutation proceeding is not a Court. Malik Fateh Khan Vs. Nazibullah Khan (1957) 9 DLR (W.P) 40.
Court's duty—When considering crime of violence, a Court is well advised to examine the circumstances of the act, and its result, for the purpose of gauging the natural probabilities. A Majid Vs. Prov. of E. Pak.(1964) 16 DLR (SC) 127.
•r-Court cannot review its own judgment nor can alter it.-
Therc is abundant authority for the proposition that the Criminal Courts cannot review or alter its own judgment in criminal cases. Babulal Agarwala Vs. State (1961) 13 DLR 1,'(1961) PLD (DAC) 523.
—Courts right to put question to a witness for special purposes should not be exercised without restraint. Sayed Kanchan AH Vs. Shahjahan (1962) 14 DLR 573: (1962) PLD (Dae.) 192.
-Courts should not put pressure on the appearing accused to produce an absconding accused. Jagabondhu Bhowmic Vs. State (1960) 12 DLR 458: (1960) PLD (Dae.) 981.
—Court is not bound to restore possession to a convicted person merely because of his subsequent acquittal. Ambia Khalun Vs. Raja Mia (1977) 29 DLR 161.
—Court, its function--A Court of law eannot and should not usurp the functions of the Legislature. If an Act passed by the Legislature is not ultra vires the Court must give effect to its provisions unaffected by political considerations.
A Court's primary duty is to declare and interpret the law. If cannot, under colour of interpretation, alter or amend the law, however stringent the provisions of an Act might happen to be. Md. Hay at Vs. Crown (1951) 3 DLR (FC) 172 (185).
^
—Court's approach, jn regard to the entire evidence produced in the case—Possibility favouring the defence reacts in defence favour.
In a criminal case, it is duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If after an examination of the whole evidence the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In such a case the accused is entitled to benefit of doubt. The State Vs. Mokshed AH Khan, (1968) 20 DLR 714.
—Court's duty to insist fipon presence of witnesses even though one is a police officer. In issuing process there cannot be any distinction between a public witness and that of a Police official.
In a case before the Magistrate both a public witness and the Investigating Officer remained absent. Warrant was issued to secure appearance of the former but no such coercive measure was taken in respect of the I.O.
Held: In issuing process there cannot be any distinction between a public witness and a Police official. As a matter of fact the latter has to be more careful in appearance in court. K.B. Ch. Gfiulam Ahmad Vs. G.L. Whitelay, (1970) 22 DLR (WP) 37.
—Court's Order—When a person ignoring a lower Court's order for appearance before that Court to answer certain charges made against him approaches the higher Court to quash the lower Court's order, the High Court will not in exercise of its discretionary power for quashing the lower Court's order, extend such relief to such person which will amount to encouraging defiance of lawful order of the subordinate Courts. Mr. A. K. Khan Vs. The Chairman, (1973) 25 DLR 192.
—Court's function is to see whether the accused is guilty of the offence he is charged with. Mizanur Rahman Zari Vs. State (1977) 29 DLR 167.
—"Court"- Essentials of what constitute a court. Idrish All Vs. State (1986) 38 DLR 270.
-Criminal Court set up under special statute can exercise powers envisaged in the code when the special statute expressly confers such power. Md. Sher Ali Vs. Spl. Tribunal (1977) 29 DLR 145.
—Court's function before it forms its conclusion. The duty of the court is to consider all the evidence of both parties and then to ascertain whether the plaintiffs had clear possession in the suit-lands and also if such possession was legal and bonafide and after such findings to decide whether a permanent injunction ought to be granted or not. Bazlur Rahman Vs. Jan Mohammad (1985) 37 DLR 79.
-Court's inherent power to do real and substantial justice-—Court must step in to render, as far as it can, substantial justice where Uurs is no other specific legal remedy for a legal right and the inherent power should be exercised EX DEBITO JUSTICIAE to do real and substantial justice for the administration of which alone the Courts exist. Kari Palan Mia Vs. The State(1983)35 DLR ISA.
Court Martial—Court Martial set up under Army Act not subordinate to the High Court Division's jurisdiction. Jamil JHaq Vs. Bangladesh. (1982) 34 DLR 125.
-Appellate Division of the Supreme Court and Court Martial Jurisdiction of the Appellate Division vis-a-vis the Court Martial under Army Act. Badrul Haider Chowdhury, J. (Ruhul Islam, J. and Shahabuddin Ahmed, J. concurring).
Jurisdiction of Court has not been conferred by the Constitution over the decision of the. Court Martial convened under the Army Act unless the proceeding are coram non judice or malafide. Court Martials are adhoc courts, out of the ambit of Civil Courts. -Court Martial if constituted legally, and jurisdictional error in procedure-Immune from writ jurisdiction. Criminal Law (Amendment) Act (XIV of 1908)
S. 17-E-Court will refuse to interfere where the authority concerned can defeat the objective sought to be achieved by Court's order. Saiyid Abul A'laMaudoodi Vs. Govt. of W. Pak. (1965) 17 DLR (SC) 209.
Cr. Law (Amendment). Act, (XIX of 1948)
S. 2(a)--Power to appoint Special Judge vested in the Central Govt. so far as Chief Commissioners' provinces are concerned-Appropriate Government means Central Government. 7955 PLD (Bal) 6.
S. 3-Officer appointed as Special Judge in 1951-subsequent amendment of Act in 1953 does not nullify appointment, made in 1951. 1955 PLD (Bal) 6.
—Ousting of jurisdiction of ordinary courts by the Special Judge.
It is impossible to hold on the language of section 3 of the Act of 1948 that a Special Judge on his appointment ousts the jurisdiction of ordinary Courts in respect of offences which have not been investigated and sent up by the Special Police Establishment. 'Md: Sharif Vs. Crown (1956) 8 DLR (PC) 23.
Sees. 3-4--Jurisdiction of ordinary criminal courts to try the offences—not excluded. Crown Vs. Meher AH (1956) 8 DLR (FC) 47.
S. 3(2)(3)—Appointment of Special Judge-By the same order which appointed him as Additional District Magistrate-Two appointments, however, published in gazette on different dates-Appointment valid -Notification regarding re-appointment as Special Judge not mentioning the designation "Special Judge" but purporting to have been issued in exercise of powers under section 3(2) of Act-Appointment: held valid. 7955 PLD (Lah) 661.
S. 4—Sanction for prosecution, after transfer of the case. The case having been transferred under subsection (4) of section 4, no sanction under the Act of 1953 was necessary. Therefore, the prosecution could proceed on the basis of the sanction given under section 6 of the Act of 1947. Md. Sharif Vs. Crown (1956) 8 DLR (FC) 23.
-The plain meaning of sec. 4 of Act XIX of 1948 is that the Special Judge can have jurisdiction within certain territorial limits only in respect of cases which are sent up to him by the. Special Police Establishment. If, therefore, a case is not sent up to a Special Judge by the Special Police Establishment, his jurisdiction in respect of that offence does not at all commence. There is nothing in the Act of 1948 which expressly or by necessary implication lays down that the jurisdiction of the ordinary courts in respect of offences which they are competent to try under the general law is ousted by the appointment of a Special Judge. Md. Sharif Vs. Crown (1956) 8 DLR (FQ.23.
S. 4(2)--There being more Special Judges than one for a particular area, the trial of cases by the Sessions Judge without any Government direction specifying the particular Judge who shall hear the particular cases is valid in law. Asgar Ali alias Asgar Ali Mian Vs. State (1959) 11 DLR (SC) 219:1959 PLD (SC) 24.
--Special Judges having concurrent jurisdiction. Where two Special Judges are appointed to try cases within the same area, both have concurrent jurisdiction to try a particular case. Nirode Chandra Vs. State (1957) 9 DLR 546.
—Ss. 4-5
S. 4(3)--Special Judge appointed under section 4(3) of Act XIX of 1948 is competent to try cases under Act (XL of 1958) when he fulfils two alternative qualifications laid down in section 3(2). Abdul Latif Vs. Stale (1961) 13 DLR (SC) 30 : 1961 PLD (SC) 49.
S. 4(4)--Sanction—proceedings in this case, when started did not require sanction—But when Act XL of 1958 came into force it made sanction necessary for prosecution of a public servant— Proceeding referred to above, will not be vitiated for absence of sanction. State Vs. Saeed Ahmed (1962) 14 DLR (SC) 142.
--'Stands transferred to the Court of Special Judge1.
A case under section 409 P.P.C. was initially tried by a Magistrate and the accused was convicted. On appeal the Chief Court of Appeal remitted the case for retrial, and meanwhile, the Criminal Law Amendment Act XXXVII of 1953 came into force.
Held: The case should go to the Court of Special Judge instead of to Magistrate under section 4(4) of the Act XIX of 1948, as amended. As soon as conviction was set aside by the Chief Court, the case became pending in the Court of the relevant Magistrate and therefore, must stand transferred to the Court of the Special Judge under section 4(4).
On such transfer fresh sanction not necessary by virtue of sec. 5(5). Gul Mohammad Vs. Crown (1956) 8 DLR (FC)50.
S. 4(7)--The words 'try other offences not so specified' permit the joinder of charges for offences not mentioned in Schedules 1 and 2 of the Criminal Law (Amendment) Act. Azizul Islam Chowdhury Vs. State (1957) 9 DLR 226.
S. 5(3)--The provisions of sub-section (3) of section 5 mean that the Special Judge may convict an accused of any offence specified in the Schedule to the Act which from the facts admitted or proved he appears to have committed although he was charged under some other offences specified in the said Schedule but he cannot be convicted for any offence which is not specified in Schedule. Abul Barkat Sharnamot Vs. State (1959) 11 DLR 173 : 1959 PLD (Dae) 617.
S. 5(4)(7)--Provisions of sub-sections (4) and (7) of section 5 are not repugnant to each other-Failure to comply with the requirement of subsection (7) does not vitiate the trial inasmuch as the directions given therein are not mandatory. Abul Hussain Vs. Slate (1960) 12 DLR 110.
--Where an Act orders a thing to be done by a public body or a public officer and appoints specific time within which it is to be done, then the enactment making such provision is directory only and might be complied with even after the prescribed or appointed time. Abul Hussein Vs. State (1960) 12 DLR 110.
S. 5(5)--Sanction—Persons charged for attempting to give bribe to an officer under the Central Government. Sanction for prosecution accorded by an officer of the Provincial Government—Sanction invalid.
Sanction given by the District Magistrate was not proper and the trial held must be deemed' void
ab initio for want of adequate and valid sanction. Jahar Dull Vs. Stale (1959) 11 DLR 242 : 1959
PLD (Dae) 758.
-Sanction for prosecution-Officer concerned having already retired from scrvice-If validly can be given by the 'Appropriate Government'. For an officer who has retired, there is within the contemplation of the Criminal Law Amendment Act, no appropriate Government who can validly sanction his prosecution for an offence committed during the period of his service.
When the sanction for his prosecution under section 5(5) of the Pakistan Criminal Law Amendment Act, 1948 was granted the appellant was not in service, he having already retired and, therefore, there was no appropriate Government which could grant sanction for his prosecution such as it would make it a competent proceeding under the provisions of section 5(5) of the Act.
The definition of 'Appropriate Government' under this section of the Act is worded so as to give the clear impression that the determination of the 'Appropriate Government' for the purpose of grant of sanction to a prosecution can only be made in relation to a person who is actually serving. Hamed Golam Sadiq Vs. Pakistan (1961) 13 DLR (SC) 126:1960 PLD (SC) 351.
-Meaning of 'Appropriate Government'
The 'Appropriate' means the Central Government in cases where public servant is serving in connection with the affairs of the Federation and in other cases the Provincial Government. Zafar AH Vs. State (1962) 14 DLR (SC) 174: 1962 PLD (SC) 320.
--Sanction-Not required in case of person other than a public servant (1956) PLD (Lah) 1051.
-Sanction filed after presentation of challan but before start of proceedings:—Trial not vitiated. 1957 PLD (Lah) 290.
--Sanction for prosecution granted under the belief that sanctioning authority was bound to accord sanction jf, in its opinion, there was aprima facie case—Sanction invalid. 1957PLD (Lah) 414.
-Proceeding against a public servant pending before Magistrate before 17th Nov., 1953,— previous sanction for prosecution not necessary, before or after, under section 5(5) Act XIX of 1948.
Sanction, in an appropriate case,,of the proper authority necessary under section 5(5) of Act XIX, 1948, for trial before Special Judge.
It is true that according to sub-section (5) of section 5 as it stood before the 17th November, 1953 in an appropriate case sanction of the Central Government and after the amendment of section 5 sanction of the appropriate Government has to be obtained before initiating any proceedings against a public servant for trial before a Special Judge but sub-section (5) of section 5 as amended by Act XXXVII of 1953 does not require that any fresh sanction must be obtained as soon as under subsection (4) of section 4 a pending case in which no sanction was necessary before the amendment of 1953 stands transferred from an ordinary Criminal Court to the Court of a Special Judge.
No previous sanction is necessary as in this particular case the case of the accused before the 17th November; 1953 was pending before a First Class Magistrate and not before Special Judge. Khabiruddin Vs. Crown (1955) 7 DLR 166.
--Cases relating to an offence--"Cases
relating to an offence" includes cases in which police has not yet put up a report —Sanction in such cases not necessary. The accused was first brought before a Magistrate on the 14th April, 1953, and until December, 1953, he was detained in custody. On the 12th April, 1954, the case was sent to the Special Judge under the Pakistan Criminal Law (Amendment) Act of 1948. The contention on behalf of the accused was that his prosecution must be deemed to have commenced from the date on which the charge-sheet was presented, namely, 15th December, 1953. On that date under the law in force, two requirements had to be fulfilled, viz., that his case should have been sent to the Special Judge, and there should have been sanction of the Central Government for his prosecution.
Held: Sub-section (4) of section 4 of the amended Act of 1948 is not, by its terms, confined to actual cases of offences but extends to cases connected with or arising out of allegation follows from the use of the expression "cases relating to any offences" in the sub-section.
Consequently the proceedings before the Magistrate from the 14th April, 1953 up to the 17th November, 1953, must be regarded as constituting a case relating to the offence which has been alleged and was subsequently formally charged against him and by the further operation of sub-section (5) of section 5 of the same Act the necessity of sanction for the prosecution of the case was avoided. It was contended that as the accused was an employee under the Central Government, sanction for his prosecution was required under section 197 Criminal P.C.
Held:- Sub-section (5) of section 5 of the amended Act of 1948, which is clearly a 'special' Act, 'qua' the Criminal P.C. being the 'general' Act, expressly excludes the operation of the corresponding provisions of the Code by the use of the words "notwithstanding anything contained in the Code of Criminal Procedure 1898". Consequently, if it be held that the case was proceeding in proper form before the Special Judge nothing in the Criminal P. C. can be deemed to operate so as lo affect ils legality in [he relevant respect. Sycd Man tut dfl Vs. Crown (1956) (FC) tifi.
corresponding provisions of Criminal Procedure Code.
-Sanction accorded by the Supdl. of Police-Qbjcction as lo ils legality raised in Ihc High Court; Held: Trial in order.
Grievance wars made for the firM lime in ihc Hiyh Courl Ihal il not having been proved thai ihc S.P. who accorded sanction for ihc prosecution of ihc appellant was rtie appointing authority, the [rial was bad—
lldd:' Sanclion accorded will be treated as valid in law inasmuch as. there is presumption under ill 115. (c) of section 114 Evidence Act that if an official aei is proved to have been done, it will be presumed lo have been regularly done until ihc contrary is proved. Hirode Ctiandw Vs. Sane (J957) 9 DLR 546.
—Sanction for proseculirni-Prosccution of sctiion 17(1) of the Government of India At [ arc only directory and nol mandatory, Sanclion fur prosecution under section 5(5) of rhc Pak. Cr. Law Amendment ace. nol expressed lo be eiv&" J" ^c name of ihc Govcmoi-Ccncral and nol Sees. 5(51 & 200-Sjnclion by "appropriate Gcivcrnmcnl"--Parw;irLs assisting Rthbibilitalion Dejsarimcm do nol thereby become persons "serving in connection wild affairs of ihc FcdenUiorT—Provineial Covcrnmenl's sanction for prosecution enough. 7 PLD tiah) 66t.
-Sanction oiaincd on Illfi April, under section G(c) of Prevention of Corfuplion Acl (II of 1947)-Sanction of Ccnlral Government or of appropriate Govi^nmciil not necessary under Acl XIX of 1948-whether licforc or after ils amcndmcnl by Criminal l-aw Amendment Act (XXXVII of 195$), J956PLD (Lah) 151.
Second Schedule-Clause fh)
--"As 3iich"-Th£ word& "as such" in clause fb) of Iht Second Schedule mean Ihal ihc offence musi he one which is committed by the puhlic servant in Ihe purported discharge . I his duties. Zamal Abtfin Vs. State (1957) 9 DLR 640.
S, 6(2). Presumption under Ihc Presnmpifon under Action 6, para 2 cannol be drawn unless it is proved that tnc money waa accepted a.s a gratillcalion for showing favour Md Yusuf Vs. Crown (1955) 7 DLR 302.
n linger Lhc sub-secuon will be made only when il is proved thai an accused had accepted yr.ni Heal ion— Trivial amount alleged as paid: as fiTalification- -Court may decline to presume il as such Nurut !tu{1956} * DUt 562. ,S. A(5)-Scc under section 4(4) of lliis Act. State Vs. Saved Ahmed (19/52) 14 DLR tSQ 142-1962 FLDtfC) 277.
S. 9(l)"ScClion 9(1) doc^ not create any independent righl of appeal or revision apari frum whai has been provided in ihc Code of Cninmai PrOL-ediire --Appeal (or revision) will lie in accordance wjih (he provision? for appeal or revision under ihc Code of Criminal Procedure. Riutam AH Vs. State (1957) 9 DLff 424.
-No appeal will lie except a revision petition from an order made under section 514,Cr. P.Ccdc, under section 9(1) of the Criminal Law Amendment Acl, 1948. Rustarn Ah Vs. State (1957} 9 DLR 424.
--Provisions rt£iirrling appeal in the Criminal Procedure Cude applicable lo Judgment pushed hy Lhe Special Judge.
The provisions of Chapter XXXI iif the Cr P.C- relating 10 appeal^ arc fully applicable lo Ihc judgment delivered by ihc Special Judge under Ihe provisions of the Pakistan Criminal Law Amendment Acl of 194S- Trie provisions of Chapin XXXI authorise the Provincial (jnvcmmcn! to prefer an appeal aguinst an order of acquilral, Sections 5 and 417 of the Criminal Procedure Code read wilh section 9 of the Criminal Law Amendment Act, 1948, provide the machinery for the filing of an appeal in the High Court under the orders of the Provincial Government. S. M. K. Alvi Vs. Crown (1953) 5 DLR (FC) 161 (172 rt.-h. col. bottom).
S. ll(a)--Power of granting sanction—The Government can authorise any person to exercise the power of grant of sanction on its behalf. Zafar All Ali Vs. State (1962) 14 DLR (SC) 174: 1962 PLD (SC) 320.
S. 11(2) (a)-Rulc framed under the section to sanction prosecution of a private person acting jointly with a public servant valid. Asgar Ali alias Asgar AH Mian Vs. State (1959) 11 DLR (SC) 219:1959 PLD (SC) 242.
S. 12—Effect of section 12 by the Amendment.
Section 12 was added to the Criminal Law (Amendment) Act of 1948 to declare that though the jurisdiction of the Special Judge in respect of other classes of public servants charged with certain offences was exclusive, nothing contained in that Act was to have the effect of excluding any jurisdiction which an authority exercised under any military, naval or air force law. M. S. K. Ibrat Vs. Commander-in-Chief (1956) 8 DLR (FC) 128: (32 n. h. col.)
Criminal Law (Amendment Act, 1953).
S. 4(4)--Evidence recorded by the Magistrate after he had lost jurisdiction over the case cannot be legally treated as evidence and conviction based thereon illegal and without jurisdiction. Basanta Kumar Chowdhury Vs. State (1961) 13 DLR 226 : 1962 PLD 61.
Criminal Law (Amendment) Act (XL of 1958)
S. 2(»)~"Appropriate Government" has reference to the time of the commission of the offence. State Vs. Saeed Ahmed (1962) 14 DLR (SC) 142:1962 PLD (SC) 320.
S. 2(b)-Railway servant in respect of offence of cheating, not a public servant. For offences falling under section 419 and 420, P.P.C., a railway employee, in view of section 137(1) (4), of the Railways Act, is not a public servant within the meaning of section 21, P.P.C
Trial by Special Judge under Pakistan Criminal Law Amendment Act, of railway employee for charges under sections 419 and 420, as a public servant, without jurisdiction. Md. Halim Vs. State (1963) 15 DLR 282.
S. 2(b)— The two accuseds (who are railway employees) in the present case who have been charged with an offence of criminal breach of trust, shall have to be tried by Special Judge under the Criminal Law Amendment Act. Slate Vs. Ali Akhler (1966) 18 DLR 684.
S. 3(l)--Sessions Judge appointed Special Judge by Central Government—Notification is competent to try offences specified in the Schedule to the Prevention of Corruption Act, 1947 committed by a Central Government employee. Syed Imdad llussain Naqi Vs. State (1963) 15 DLR (WP) 66.
S. 4--Seclion confers jurisdiction on Special Judge for taking cognizance. A. S. S. Mohammad Ali Vs. The State (1983) 35 DLR (AD) 324.
Sees. 4 and 6—Provisions made under section 4 of the Cr. Law Amendment Act enabling the Special Judge to take cognizance of an offence either on a complaint or police report can not be construed as meaning that the requirement under clause (e) of section 195 (I) Criminal Procedure Code for making a complaint in writing by the court concerned can be rendered nugatory and may be dispensed with since section 6 of Cr. Law Amendment Act provides that provisions of the Criminal Procedure Code which are not inconsistent with the provisions of Criminal Law Amendment Act shall be applicable in a trial held by a Special Judge under the Cr. Law Amendment Act. Muslim Khan Vs. State (1986) 38 DLR (AD) 60.
—Ss. 4-6
S. 4(1)—Petitioner's name was shown in col. 2 of the Charge-sheet—On Public Prosecutor's application before the Special Judge before whom the case of another accused was pending that the petitioner should be brought up as an accused; the Judge asked for sanction for prosecution of the petitioner and the Supdt. of Police gave the sanction:- Held, such sanction not being in accordance with S. 4(1) of the Cr. Law Amendment Act, prosecution of the petitioner is illegal. Khorshed Alam Vs. The State (1975) 27DLR 111.
S. 4(l)"Special Judge can take cognizance of offence upon complaint or upon report in writing. Abul Mansur Ahmed vs. State (1961) 13 DLR 353: 1961 PLD (Dae.) 753.
S. 5(1), (6)--Offence of criminal breach of trust by public servant exclusively triable by the Special Judge with sanction by appropriate Government. All Ahmed Vs. Slate (1962) 14 DLR (SC) 81 .-(1962) PLD (SC) 102.
-Offences committed under section 409 P.P. Code, when the accused was a public servant-sanction accorded when he was not public servant-offence under section 409 exclusively triable by the Special Judge and trial held is valid even though sanction in law may not be necessary. All Ahmed Vs. State (1962) 14 DLR (SC) 81 : (1962) PLD (SC) 102.
S. 5(1)--An offence u/s. 409 of the Penal Code is exclusively triable by a Special Judge on a written report by the Police or the Bureau of Anti-corruption. A. Mannan Vs. U.N.O., Kalmakanda (1987) 39 DLR 412.
-An Upazila Magistrate has no jurisdiction to take cognizance of an offence u/s. 409 of the Penal Code against public servant. A. Mannan Vs. U.N.O., Kalmakanda (1987) 39 DLR 412.
S. 5(2)—When the special Judge has acquitted an accused before framing charge—the accused can not be said to have "tried" and such acquittal is no bar to a second trial in respect of same offence. State Vs. Md. Shaft (1964) 16 DLR (WP) 30.
S. 5(6)—Provision of sub-section 6 of Section 5 of the Criminal Law Amendment Act contemplates power of the Special Judge to order investigation or further investigation by a Police Officer at any stage of the proceeding before cognizance has been taken and trial has begun. Kazi Nurul lloque Vs. The State (1983) 35 DLR 352.
S. 5(6)--Spccial Judge may direct further police investigation only when cognizance of the case not taken or before commencement of the trial. Kazi Nurul HaqUe Vs. State (1983) 35 DLR 352.
S. 5(7)--Joint trial of offence, can be held by Special Tribunal. Kazi Mozharul Iluq Vs. State (1981) 33 DLR 262.
Sees. 6 & 5(6) Effect of both the/ sections.
The combined effect of the provisions embodied in sections 6 and 5(6) of the Pakistan Criminal Law (Amendment) Act, 1958 is that cases falling wilhin the ambit of the Pak. Cr. Law (Amendment) Act, 1958, arc to be tried as Sessions cases without the preliminary commitment procedure laid down in Chapter XVIII of the Code of Criminal Procedure. Stale Vs. Md. Shaft (1964) 16 DLR (WP) 30.
S. 6(1)—Special Judge appointed under the Act, when trying cases invested with the power of Sessions Judge acting without assessors or jury.
Section 6(1) of the Criminal Law Amendment Act (XL of 1958) in clear language says that the Court of Special Judge shall be deemed to be a Court of Session. Trying cases without the aid of Assessors or Jury, and that the provisions of the code of Criminal Procedure, except Chapter XXXVIII, shall apply to the proceedings of a Court of Special Judge. The Act in un-ambiguous language confers on the court of a Special Judge, the status of a court of sessions. Furthermore, except a minor chapter, whole of the Criminal Procedure Code applies to a proceedings of such a Court. The Court of a Special Judge is in terms of the said act a Criminal Court with the power and status of a Court of Sessions. Haider all Vs. Bangladesh (7976) 28 DLR (Apl. Division) 115.
S. 6(4)--Special Judge when trying on a charge under section 162 P.P.C. not competent to try the same accused under section 384 P.P.C. Monoranjan Dey Vs. State (1959) 11 DLR 172.
S. 6(5)--The Special Judge in this case held that cognizance of the accused, Abdur Rahim, a public servant, was taken on 22.5.75 without there being a sanction to prosecute him and also without writing by the Trial Judge to the Government for sanction and as such renders the prosecution of the accused illegal u/s. 6(5) of the Cr. Law Amendment Act, 1958. Bangladesh Vs. Abdur Rahim. (1983) 35 DLR 249.
-Ratio decidendi of the cases decided before the amendment of Act (XL of 1958) reported in DLR volumes 9 and 10. Bangladesh Vs. Abdur Rahim. (1983) 35 DLR 249.
--Sanction having been accorded before the framing of the charge there can be no defect in the procedure and trial can proceed according to law. Bangladesh Vs. Abdur Rahim (1983) 35 DLR 249.
-If the Special Judge fails to write to the appropriate authority for necessary sanction for prosecution, if however the sanction is accorded before the charge is framed, the proceeding will be in compliance of law. Bangladesh Vs. Abdur Rahim. (1983) 35 DLR 249.
S. 6(5) 1st. proviso-Under the 1st proviso lo s. 6(5), if the complaint or report is not accompanied by sanction, the Special Judge is to address the Govt. for sanction—This writing to the Govt. for sanction amounts to taking cognizance of the case or initiates a proceeding in connection with the prosecution of the case. Cases reported in (1957) 9 DLR 109 & (1958) 10 DLR 321 & 370 can no longer be treated as good law. Bangladesh Vs. Abdur Rahim. (1983) 35 DLR 249.
S. 6(5)-What sub-section (5) of s. 6 provides—Section 6(5) is as follows:
"(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, previous sanction of the Government shall be required for the prosecution of a public servant for
an offence under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act.
Provided that in case where the complaint or report referred to in sub-section (I) of section 4 is not accompanied by such sanction the Special judge shall, immediately on receipt of the complaint or report, address, by letter, the Government, in the matter, and if the required sanction is neither received nor refused within sixty days of the receipt of the letter by the Government, such sanction shall be deemed to have been duly accorded." A.S.S. Mohammad All Vs. State (1983) 35 DLR (AD) 324.
-Prosecution of public servant-—Sanction for prosecution. If the complaint u/s 4 not accompanied by sanction the Special Judge required to write to the Govt for sanction—If it is not received within 60 days, the presumption is sanction has been accorded-In case of transferred case no further sanction necessary. A.S.S. Mohammad All Vs. State (1983) 35 DLR (AD) 324.
-If the Special Judge has failed to write to the Govt. for sanction there is thus a breach of the provision of law and it can not be assumed that sanction has been given—In that case court will have no jurisdiction to try the case. A.S.S. Mohammad Ali Vs. State (1983) 35 DLR (AD) 324.
-It is essential that the Special Judge must write to the Govt. for sanction—If this condition is not fulfilled there can be no prosecution. A.S.S. Mohamad Ali Vs. State (1983) 35 DLR (AD) 324.
—No sanction for prosecution necessary if the public servant concerned ceased to be a public servant when the Court takes cognizance of the offence. Jamdher Khan Vs. The State (1975) 27 DLR (AD) 35.
.--Sanction needed only for prosecuting a public servant. State Vs. Saeed Ahmed (1962) 14 DLR (SC) 142 : (1962) PLD (SC) 320.
Sanction—Charge of misappropriation—fact which must be shown to have been placed before and considered by sanctioning authority. Where the order of the appropriate authority giving sanction for the prosecution of the accused did not show anywhere what papers were put up before him and what issues were involved, nor any extraneous evidence had been given in the case to prove that the sanctioning authority was made aware of the details and of the explanation given by the accused. Such a sanction was a mechanical sanction and is not valid. Abdul Awal Vs. State (1961) 13 DLR 397:1962 PLD (Dae) 623
—Accused was a public servant at the time when the offence alleged was committed, but ceased to be so at the time of the trial—prosecution not invalid.
Public servant committing offence of cheating under section 420 P.P.C.—Cannot be said to be acting in discharge of his official duty—No sanction for prosecution necessary. Slate Vs. Sikandar Khan (1963) 15 DLR (WP) 1
-Prosecution in respect of a person who has ceased to be a public servant when prosecution started, will require sanction for offence committed while acting as a public servant. Held: Although the offence is said to have been committed at a time when the appellant was in office as a Minister and although the prosecution was sought to be started at the time when he had ceased to be a Minister yet it was necessary for the institution of the prosecution against him that sanction from the appropriate Government should be obtained. Shaikh Mujibur Rahman Vs. State (1963) 15 DLR 549.
—Prosecution of a public servant no longer in service under this Act, if necessary. In case of a person who has ceased to be public servant there is no appropriate Government having control over him at the time of sanction. No sanction is called for such a person's prosecution and if a sanction was given it was a superfluity. Abul Monsur Ahmed Vs. State (1961) 13 DLR 353 : 1961 PLD (Dae) 753.
—Breach of the mandatory provision of subsection (7) of section 6 does not vitiate,the trial unless the accused is prejudiced.
Failure to supply the accused with the statement of the witnesses one week before the commencement of the trial as required by section 6(7) of the Act, even though it constitutes a breach of the mandatory provision, cannot be said to be an illegality vitiating a trial or proceeding and, unless the accused is prejudiced, it will not warrant quashing a conviction. Muhbubur Rahman Vs. State (1960) 12 PLD 66: DLR (Dae) 344.
—Infringement of the mandatory provision of section 6(7) does not vitiate the trial unless the accused is prejudiced. Md. Hasan All Chowdhury Vs. State (1961) 13 DLR 581.
-"May act on the evidence already produced or recorded and continue the trial from the stage which the case has reached." Evidence recorded by the committing Magistrate before commitment of the accused to the Sessions Court cannot be used by the Special Judge as evidence for the disposal of the case pending before him. The proceedings before the committing Magistrate cannot be treated as the stage from which a trial can be continued inasmuch as no trial had commenced in court of the committing Magistrate. Shamsuddin Ahmed Vs. State (1959) 11 DLR 508 : 1960 PLD (Dae) 205.
-Sanction for prosecution of a person who was a public servant when the offence cognizable under the Act was committed but ceased to be so when the Court took cognizance of the offence—Not necessary. Nazir Hussain'Vs. State (1965) 17DLR (SC) 26.
Sees. 6(5) read with Sec. 5—Sanction when the accused no longer public servant. The Special Judge was wrong in acquitting the accused on the ground that sanction for his prosecution was given when he was no longer in service inasmuch as in such a case the Special Judge's jurisdiction to try the case is not ousted. State Vs. Raja Khan (1964) 16 DLR(WP) III.
S. 8--Evidcnce recorded by Magistrate after he had lost jurisdiction over the case cannot be legally treated as evidence and conviction based thereon illegal and without jurisdiction. Basanta Kumar Chowdhury Vs. State (1961) 13 DLR 226:(1962) PLD (SC) 61.
S.9--Expression "gain found to have been derived".
Section 9 of the Pak. Criminal Law (Amendment) Act, 1958, which requires that when any person charged before a Special Judge with an offence triable under the said Act is found guilty of the offence, the Special Judge shall, notwithstanding anything contained in any other law, whether or not he imposes a sentence of imprisonment, impose a sentence of fine which shall not be less than the gain found to have been derived by the accused by the commission of the offence. State Vs. Nazir Hossain (1964) 16 DLR(WP) 48.
When breach of trust is committed offence is complete—Refund does not make any difference.
Immediately the offence of criminal breach of trust is committed, the accused has derived a gain within the meaning of section 8 of the Pakistan Criminal Law (Amendment) Act. 1958, and the fact lhat he subsequently refunds the money being immaterial. State Vs. Nazir Hossain (1964) 16 DLR (WP)48
S. 10—Revision against the order of acquittal filed after period of limitation cannot be rejected on the sole ground of delay—Judge in disposing of petition entitled, nevertheless, to take into consideration factor of delay-Unexplained delay of more than a year—Interfce by the Court in revision refused. State Vs. Raja Khan (1964) 16 DLR (WP) 121.
Criminal Procedure Code (V of 1898)
S.I—Special jurisdiction for trial of contempt of court—not exercised under provisions of Cr.P.C.—Cr.P.C not applicable lo proceedings in exercise of speical jurisdiction. G.S. Gideon Vs. State PLD 1963 (SC) 1
S. l(2)--The East Pakistan Ordinance XII of 1956 being a special law, all its provisions as regards the jurisdiction of the Courts and procedure to be followed are saved by sub-section (2) of section 1 and sub-section (2), S. 5'Cr.P. Code. Chief Secy. Vs. Moslemuddin (1957) 9 DLR (SC) 20A
—The words "in the absence of any specific provision to the contrary" - What they refer to.
The words "in the absence of any specific, provision to the contrary " in section 1(2) mean and contemplate a provision specific in affecting the special or local law. It means that there may be a specific provison in the special or local law that the Cr.P. Code will apply to the proceedings under the Act. If it is not so provided, Cr.P. Code will not apply. Gahena Vs. The State (1968) 20 DLR (WP) 271.
Sections 1(2) and 5(2)--Meaning of both these sections when they are read together : The position which emerges is (a) that all the offences under the Penal Code are to be investigated, inquired into and tried in accordance with the procedure in the Criminal Procedure Code; (b) that an offence under a special or local law is likewise to be governed by the procedure given in Cr.P.Codc unless the special or local law provides for a different procedure; and (c) that in respect to all other matters, covered by special or local law, the Cr.P.Code is not applicable, unless there is a specific provision to that effect. Gahena Vs. The Stale (1968) 20 DLR (WP) 271
S. l(2)--The effect of section 4(2) in the background of section 29 of the Code is that where the special law provides for trial of particular offences by particular courts they shall be so tried exclusively. Bangladesh Vs. Shahjahan Siraj (1980) 32 DLR (AD) 1.
S. 2(1)—Chittagong Hill tracts—Cr.P.C is applicable to area. State Vs. Ain Khan (1961) 13 DLR 911.
—S4(l)—"Investigation", when deemed to begin —Agreement to receive bribe, and actual receipt of bribe—-are two offences—Investigation begins at different moments.
(Sajjad Ahmed,J.)—Investigation for an offence under section 4(1) of the Act starts, when the first step is taken towards investigation qua the offence actually investigated. If the investigation has been initiated for the offence of the demand of illegal gratification, it starts as soon as the police officer, takes a step to ascertain the facts and circumstances of the demand having been made for illegal gratification, and the circumstances connected with the laying of the trap would be steps in that investigation to test the veracity of the allegation about the demand. But if the allegation about the demand has been ignored and no step has been taken for ascertainment of facts and circumstances for its detection and the trap is laid to build up the separate offence of "actual receipt of the bribe", even though its genesis lies in the allegation regarding the illegal demand, the investigation qua that offence will start after the commission of that offence. Investigation follows the suspected commission of the offence and does not precede it. Ghulam Abbas Vs. The State (1968) 20 DLR (WP) 48.
S.4(b)—Complaint—who may make. Any person who knows about the commission of an offence may make a complaint. Jassumal Vs. State PLD 1962(WP) Karachi 326
S. 4(b)—"Investigation" what the term connotes. Under the Code of Criminal Procedure the word "Investigation" generally consists of the following steps: (I) proceeding to the spot (2) ascertainment of facts and circumstances of the case (3) discovery and the arrest of the suspected offender or offenders and (4) collection of evidence relating to the commission of the offence alleged which may consist of (a) the examination of various persons including the accused and the reduction of their statements into writing/if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial and (5) formation of the opinion as to whether on the materials collected there is a case to place the accused before a court for trial and if so, taking the necessary steps for the same by the filing of a charge-sheet under section 173 of the Criminal Procedure Code. Mr. Moshanaf Hossain Vs. State (1978) 30 DLR (SC). 112.
S.4(h)—Complaint—Definition of—means allegation made orally or in writ ing to a Magistrate with a view to his taking action under the Code that some person whether known or unknown .has committed an offence. Jagadish Chandra Vs. ' Joynarayan (1962) 14 DLR 198.
S.4(l)(h)--Compiaint does not require statement of facts beyond allegation that some person has committed, an offence. Ghulam Mohammed Vs. Ghulam Mohammed Khan 5 PLD (BJ.) 72.
S.4(l)(f)—Revenue Officer conducting judicial proceedings—Not a Court—Not competent to punish for contempt. State Vs Muhammed Idris All Sikdar PLD 1965(SC) 677.
S. 4(l)(ra)--Officer acting under section 93A of the Dacca Town Improvement Act is not engaged in 'Judicial proceeding' within the meaning of section 4(l)(m) of the Code as contemplated by section 228, P.P.Code. Aziza Khalun Vs. The State (1967) 19 DLR 355.
S.4(l)(r)--"Any other person appointed with the permission of the Court"—such person must be duly appointed by the accused and the requisite permission of Court obtained to represent him. llabib Ullah Khan Vs. Md. Hossain 4 PLD (J & K) 38.
S. 4(1) cl. (t)--Public Prosecutor includes Assistant Public Prosecutor.
The definition of "Public Prosecutor" in clause (t) of section 4(1) of the Criminal Procedure Code includes Assistant Public Prosecutors and any other person who conducts a prosecution under the directions of the Public Prosecutor. Superintendent & Legal Remembrancer Vs. Aminul Huq & anr. (I960) 12 DLR 324—{I960) PLD (Dae) 783.
S.4(l)(S)--PoIice Lockup can be located only in police station —Detention of under Trial prisoner in C.I.A office—Illegal. State Vs. Mohd. YusufPLD 1965 (WP) Lahore 324.
S. 5(2)--The mode of trial dealing with offences of any other law, subject to any enactment for the time being in force, has been prescribed Under S. 5(2) of the Criminal Procedure Code. Delwar All Khan Vs. Sajedul Hague (1986) 38 DLR (AD) 52.
S.5(2)--The East Pakistan Ordinance XII of 1956 being a special law, all its provisions as regards the jurisdiction of the Courts and procedure to be followed are saved by sub-section (2) of section 1 and sub-sec. (2), S.5, Cr.P.Code. Chief Secy. Vs. Moslemuddin 9 DLR (SC) 204.
6(1) and 10(4)--Court's consent, which is a requirement under section 494 Criminal Procedure Code, is not necessary for withdrawal of a case before a Special Judge for trial under Act LX of 1958 (Criminal Law Amendment Act). When the Public Prosecutor, who is appointed as such under Act of 1958, under the direction of the Government, files an application for withdrawal of such a case pending before the Special Judge, the latter has no alternative but then and there to record an order of withdrawal and stop further proceeding. The Investigating Authority has no say in this matter. Any interference by the Investigating Authority concerning the matter of withdrawal is u
Held: In issuing process there cannot be any distinction between a public witness and a Police official. As a matter of fact the latter has to be more careful in appearance in court. K.B. Ch. Gfiulam Ahmad Vs. G.L. Whitelay, (1970) 22 DLR (WP) 37.
—Court's Order—When a person ignoring a lower Court's order for appearance before that Court to answer certain charges made against him approaches the higher Court to quash the lower Court's order, the High Court will not in exercise of its discretionary power for quashing the lower Court's order, extend such relief to such person which will amount to encouraging defiance of lawful order of the subordinate Courts. Mr. A. K. Khan Vs. The Chairman, (1973) 25 DLR 192.
—Court's function is to see whether the accused is guilty of the offence he is charged with. Mizanur Rahman Zari Vs. State (1977) 29 DLR 167.
—"Court"- Essentials of what constitute a court. Idrish All Vs. State (1986) 38 DLR 270.
-Criminal Court set up under special statute can exercise powers envisaged in the code when the special statute expressly confers such power. Md. Sher Ali Vs. Spl. Tribunal (1977) 29 DLR 145.
—Court's function before it forms its conclusion. The duty of the court is to consider all the evidence of both parties and then to ascertain whether the plaintiffs had clear possession in the suit-lands and also if such possession was legal and bonafide and after such findings to decide whether a permanent injunction ought to be granted or not. Bazlur Rahman Vs. Jan Mohammad (1985) 37 DLR 79.
-Court's inherent power to do real and substantial justice-—Court must step in to render, as far as it can, substantial justice where Uurs is no other specific legal remedy for a legal right and the inherent power should be exercised EX DEBITO JUSTICIAE to do real and substantial justice for the administration of which alone the Courts exist. Kari Palan Mia Vs. The State(1983)35 DLR ISA.
Court Martial—Court Martial set up under Army Act not subordinate to the High Court Division's jurisdiction. Jamil JHaq Vs. Bangladesh. (1982) 34 DLR 125.
-Appellate Division of the Supreme Court and Court Martial Jurisdiction of the Appellate Division vis-a-vis the Court Martial under Army Act. Badrul Haider Chowdhury, J. (Ruhul Islam, J. and Shahabuddin Ahmed, J. concurring).
Jurisdiction of Court has not been conferred by the Constitution over the decision of the. Court Martial convened under the Army Act unless the proceeding are coram non judice or malafide. Court Martials are adhoc courts, out of the ambit of Civil Courts. -Court Martial if constituted legally, and jurisdictional error in procedure-Immune from writ jurisdiction. Criminal Law (Amendment) Act (XIV of 1908)
S. 17-E-Court will refuse to interfere where the authority concerned can defeat the objective sought to be achieved by Court's order. Saiyid Abul A'laMaudoodi Vs. Govt. of W. Pak. (1965) 17 DLR (SC) 209.
Cr. Law (Amendment). Act, (XIX of 1948)
S. 2(a)--Power to appoint Special Judge vested in the Central Govt. so far as Chief Commissioners' provinces are concerned-Appropriate Government means Central Government. 7955 PLD (Bal) 6.
S. 3-Officer appointed as Special Judge in 1951-subsequent amendment of Act in 1953 does not nullify appointment, made in 1951. 1955 PLD (Bal) 6.
—Ousting of jurisdiction of ordinary courts by the Special Judge.
It is impossible to hold on the language of section 3 of the Act of 1948 that a Special Judge on his appointment ousts the jurisdiction of ordinary Courts in respect of offences which have not been investigated and sent up by the Special Police Establishment. 'Md: Sharif Vs. Crown (1956) 8 DLR (PC) 23.
Sees. 3-4--Jurisdiction of ordinary criminal courts to try the offences—not excluded. Crown Vs. Meher AH (1956) 8 DLR (FC) 47.
S. 3(2)(3)—Appointment of Special Judge-By the same order which appointed him as Additional District Magistrate-Two appointments, however, published in gazette on different dates-Appointment valid -Notification regarding re-appointment as Special Judge not mentioning the designation "Special Judge" but purporting to have been issued in exercise of powers under section 3(2) of Act-Appointment: held valid. 7955 PLD (Lah) 661.
S. 4—Sanction for prosecution, after transfer of the case. The case having been transferred under subsection (4) of section 4, no sanction under the Act of 1953 was necessary. Therefore, the prosecution could proceed on the basis of the sanction given under section 6 of the Act of 1947. Md. Sharif Vs. Crown (1956) 8 DLR (FC) 23.
-The plain meaning of sec. 4 of Act XIX of 1948 is that the Special Judge can have jurisdiction within certain territorial limits only in respect of cases which are sent up to him by the. Special Police Establishment. If, therefore, a case is not sent up to a Special Judge by the Special Police Establishment, his jurisdiction in respect of that offence does not at all commence. There is nothing in the Act of 1948 which expressly or by necessary implication lays down that the jurisdiction of the ordinary courts in respect of offences which they are competent to try under the general law is ousted by the appointment of a Special Judge. Md. Sharif Vs. Crown (1956) 8 DLR (FQ.23.
S. 4(2)--There being more Special Judges than one for a particular area, the trial of cases by the Sessions Judge without any Government direction specifying the particular Judge who shall hear the particular cases is valid in law. Asgar Ali alias Asgar Ali Mian Vs. State (1959) 11 DLR (SC) 219:1959 PLD (SC) 24.
--Special Judges having concurrent jurisdiction. Where two Special Judges are appointed to try cases within the same area, both have concurrent jurisdiction to try a particular case. Nirode Chandra Vs. State (1957) 9 DLR 546.
—Ss. 4-5
S. 4(3)--Special Judge appointed under section 4(3) of Act XIX of 1948 is competent to try cases under Act (XL of 1958) when he fulfils two alternative qualifications laid down in section 3(2). Abdul Latif Vs. Stale (1961) 13 DLR (SC) 30 : 1961 PLD (SC) 49.
S. 4(4)--Sanction—proceedings in this case, when started did not require sanction—But when Act XL of 1958 came into force it made sanction necessary for prosecution of a public servant— Proceeding referred to above, will not be vitiated for absence of sanction. State Vs. Saeed Ahmed (1962) 14 DLR (SC) 142.
--'Stands transferred to the Court of Special Judge1.
A case under section 409 P.P.C. was initially tried by a Magistrate and the accused was convicted. On appeal the Chief Court of Appeal remitted the case for retrial, and meanwhile, the Criminal Law Amendment Act XXXVII of 1953 came into force.
Held: The case should go to the Court of Special Judge instead of to Magistrate under section 4(4) of the Act XIX of 1948, as amended. As soon as conviction was set aside by the Chief Court, the case became pending in the Court of the relevant Magistrate and therefore, must stand transferred to the Court of the Special Judge under section 4(4).
On such transfer fresh sanction not necessary by virtue of sec. 5(5). Gul Mohammad Vs. Crown (1956) 8 DLR (FC)50.
S. 4(7)--The words 'try other offences not so specified' permit the joinder of charges for offences not mentioned in Schedules 1 and 2 of the Criminal Law (Amendment) Act. Azizul Islam Chowdhury Vs. State (1957) 9 DLR 226.
S. 5(3)--The provisions of sub-section (3) of section 5 mean that the Special Judge may convict an accused of any offence specified in the Schedule to the Act which from the facts admitted or proved he appears to have committed although he was charged under some other offences specified in the said Schedule but he cannot be convicted for any offence which is not specified in Schedule. Abul Barkat Sharnamot Vs. State (1959) 11 DLR 173 : 1959 PLD (Dae) 617.
S. 5(4)(7)--Provisions of sub-sections (4) and (7) of section 5 are not repugnant to each other-Failure to comply with the requirement of subsection (7) does not vitiate the trial inasmuch as the directions given therein are not mandatory. Abul Hussain Vs. Slate (1960) 12 DLR 110.
--Where an Act orders a thing to be done by a public body or a public officer and appoints specific time within which it is to be done, then the enactment making such provision is directory only and might be complied with even after the prescribed or appointed time. Abul Hussein Vs. State (1960) 12 DLR 110.
S. 5(5)--Sanction—Persons charged for attempting to give bribe to an officer under the Central Government. Sanction for prosecution accorded by an officer of the Provincial Government—Sanction invalid.
Sanction given by the District Magistrate was not proper and the trial held must be deemed' void
ab initio for want of adequate and valid sanction. Jahar Dull Vs. Stale (1959) 11 DLR 242 : 1959
PLD (Dae) 758.
-Sanction for prosecution-Officer concerned having already retired from scrvice-If validly can be given by the 'Appropriate Government'. For an officer who has retired, there is within the contemplation of the Criminal Law Amendment Act, no appropriate Government who can validly sanction his prosecution for an offence committed during the period of his service.
When the sanction for his prosecution under section 5(5) of the Pakistan Criminal Law Amendment Act, 1948 was granted the appellant was not in service, he having already retired and, therefore, there was no appropriate Government which could grant sanction for his prosecution such as it would make it a competent proceeding under the provisions of section 5(5) of the Act.
The definition of 'Appropriate Government' under this section of the Act is worded so as to give the clear impression that the determination of the 'Appropriate Government' for the purpose of grant of sanction to a prosecution can only be made in relation to a person who is actually serving. Hamed Golam Sadiq Vs. Pakistan (1961) 13 DLR (SC) 126:1960 PLD (SC) 351.
-Meaning of 'Appropriate Government'
The 'Appropriate' means the Central Government in cases where public servant is serving in connection with the affairs of the Federation and in other cases the Provincial Government. Zafar AH Vs. State (1962) 14 DLR (SC) 174: 1962 PLD (SC) 320.
--Sanction-Not required in case of person other than a public servant (1956) PLD (Lah) 1051.
-Sanction filed after presentation of challan but before start of proceedings:—Trial not vitiated. 1957 PLD (Lah) 290.
--Sanction for prosecution granted under the belief that sanctioning authority was bound to accord sanction jf, in its opinion, there was aprima facie case—Sanction invalid. 1957PLD (Lah) 414.
-Proceeding against a public servant pending before Magistrate before 17th Nov., 1953,— previous sanction for prosecution not necessary, before or after, under section 5(5) Act XIX of 1948.
Sanction, in an appropriate case,,of the proper authority necessary under section 5(5) of Act XIX, 1948, for trial before Special Judge.
It is true that according to sub-section (5) of section 5 as it stood before the 17th November, 1953 in an appropriate case sanction of the Central Government and after the amendment of section 5 sanction of the appropriate Government has to be obtained before initiating any proceedings against a public servant for trial before a Special Judge but sub-section (5) of section 5 as amended by Act XXXVII of 1953 does not require that any fresh sanction must be obtained as soon as under subsection (4) of section 4 a pending case in which no sanction was necessary before the amendment of 1953 stands transferred from an ordinary Criminal Court to the Court of a Special Judge.
No previous sanction is necessary as in this particular case the case of the accused before the 17th November; 1953 was pending before a First Class Magistrate and not before Special Judge. Khabiruddin Vs. Crown (1955) 7 DLR 166.
--Cases relating to an offence--"Cases
relating to an offence" includes cases in which police has not yet put up a report —Sanction in such cases not necessary. The accused was first brought before a Magistrate on the 14th April, 1953, and until December, 1953, he was detained in custody. On the 12th April, 1954, the case was sent to the Special Judge under the Pakistan Criminal Law (Amendment) Act of 1948. The contention on behalf of the accused was that his prosecution must be deemed to have commenced from the date on which the charge-sheet was presented, namely, 15th December, 1953. On that date under the law in force, two requirements had to be fulfilled, viz., that his case should have been sent to the Special Judge, and there should have been sanction of the Central Government for his prosecution.
Held: Sub-section (4) of section 4 of the amended Act of 1948 is not, by its terms, confined to actual cases of offences but extends to cases connected with or arising out of allegation follows from the use of the expression "cases relating to any offences" in the sub-section.
Consequently the proceedings before the Magistrate from the 14th April, 1953 up to the 17th November, 1953, must be regarded as constituting a case relating to the offence which has been alleged and was subsequently formally charged against him and by the further operation of sub-section (5) of section 5 of the same Act the necessity of sanction for the prosecution of the case was avoided. It was contended that as the accused was an employee under the Central Government, sanction for his prosecution was required under section 197 Criminal P.C.
Held:- Sub-section (5) of section 5 of the amended Act of 1948, which is clearly a 'special' Act, 'qua' the Criminal P.C. being the 'general' Act, expressly excludes the operation of the corresponding provisions of the Code by the use of the words "notwithstanding anything contained in the Code of Criminal Procedure 1898". Consequently, if it be held that the case was proceeding in proper form before the Special Judge nothing in the Criminal P. C. can be deemed to operate so as lo affect ils legality in [he relevant respect. Sycd Man tut dfl Vs. Crown (1956) (FC) tifi.
corresponding provisions of Criminal Procedure Code.
-Sanction accorded by the Supdl. of Police-Qbjcction as lo ils legality raised in Ihc High Court; Held: Trial in order.
Grievance wars made for the firM lime in ihc Hiyh Courl Ihal il not having been proved thai ihc S.P. who accorded sanction for ihc prosecution of ihc appellant was rtie appointing authority, the [rial was bad—
lldd:' Sanclion accorded will be treated as valid in law inasmuch as. there is presumption under ill 115. (c) of section 114 Evidence Act that if an official aei is proved to have been done, it will be presumed lo have been regularly done until ihc contrary is proved. Hirode Ctiandw Vs. Sane (J957) 9 DLR 546.
—Sanction for proseculirni-Prosccution of sctiion 17(1) of the Government of India At [ arc only directory and nol mandatory, Sanclion fur prosecution under section 5(5) of rhc Pak. Cr. Law Amendment ace. nol expressed lo be eiv&" J" ^c name of ihc Govcmoi-Ccncral and nol Sees. 5(51 & 200-Sjnclion by "appropriate Gcivcrnmcnl"--Parw;irLs assisting Rthbibilitalion Dejsarimcm do nol thereby become persons "serving in connection wild affairs of ihc FcdenUiorT—Provineial Covcrnmenl's sanction for prosecution enough. 7 PLD tiah) 66t.
-Sanction oiaincd on Illfi April, under section G(c) of Prevention of Corfuplion Acl (II of 1947)-Sanction of Ccnlral Government or of appropriate Govi^nmciil not necessary under Acl XIX of 1948-whether licforc or after ils amcndmcnl by Criminal l-aw Amendment Act (XXXVII of 195$), J956PLD (Lah) 151.
Second Schedule-Clause fh)
--"As 3iich"-Th£ word& "as such" in clause fb) of Iht Second Schedule mean Ihal ihc offence musi he one which is committed by the puhlic servant in Ihe purported discharge . I his duties. Zamal Abtfin Vs. State (1957) 9 DLR 640.
S, 6(2). Presumption under Ihc Presnmpifon under Action 6, para 2 cannol be drawn unless it is proved that tnc money waa accepted a.s a gratillcalion for showing favour Md Yusuf Vs. Crown (1955) 7 DLR 302.
n linger Lhc sub-secuon will be made only when il is proved thai an accused had accepted yr.ni Heal ion— Trivial amount alleged as paid: as fiTalification- -Court may decline to presume il as such Nurut !tu{1956} * DUt 562. ,S. A(5)-Scc under section 4(4) of lliis Act. State Vs. Saved Ahmed (19/52) 14 DLR tSQ 142-1962 FLDtfC) 277.
S. 9(l)"ScClion 9(1) doc^ not create any independent righl of appeal or revision apari frum whai has been provided in ihc Code of Cninmai PrOL-ediire --Appeal (or revision) will lie in accordance wjih (he provision? for appeal or revision under ihc Code of Criminal Procedure. Riutam AH Vs. State (1957) 9 DLff 424.
-No appeal will lie except a revision petition from an order made under section 514,Cr. P.Ccdc, under section 9(1) of the Criminal Law Amendment Acl, 1948. Rustarn Ah Vs. State (1957} 9 DLR 424.
--Provisions rt£iirrling appeal in the Criminal Procedure Cude applicable lo Judgment pushed hy Lhe Special Judge.
The provisions of Chapter XXXI iif the Cr P.C- relating 10 appeal^ arc fully applicable lo Ihc judgment delivered by ihc Special Judge under Ihe provisions of the Pakistan Criminal Law Amendment Acl of 194S- Trie provisions of Chapin XXXI authorise the Provincial (jnvcmmcn! to prefer an appeal aguinst an order of acquilral, Sections 5 and 417 of the Criminal Procedure Code read wilh section 9 of the Criminal Law Amendment Act, 1948, provide the machinery for the filing of an appeal in the High Court under the orders of the Provincial Government. S. M. K. Alvi Vs. Crown (1953) 5 DLR (FC) 161 (172 rt.-h. col. bottom).
S. ll(a)--Power of granting sanction—The Government can authorise any person to exercise the power of grant of sanction on its behalf. Zafar All Ali Vs. State (1962) 14 DLR (SC) 174: 1962 PLD (SC) 320.
S. 11(2) (a)-Rulc framed under the section to sanction prosecution of a private person acting jointly with a public servant valid. Asgar Ali alias Asgar AH Mian Vs. State (1959) 11 DLR (SC) 219:1959 PLD (SC) 242.
S. 12—Effect of section 12 by the Amendment.
Section 12 was added to the Criminal Law (Amendment) Act of 1948 to declare that though the jurisdiction of the Special Judge in respect of other classes of public servants charged with certain offences was exclusive, nothing contained in that Act was to have the effect of excluding any jurisdiction which an authority exercised under any military, naval or air force law. M. S. K. Ibrat Vs. Commander-in-Chief (1956) 8 DLR (FC) 128: (32 n. h. col.)
Criminal Law (Amendment Act, 1953).
S. 4(4)--Evidence recorded by the Magistrate after he had lost jurisdiction over the case cannot be legally treated as evidence and conviction based thereon illegal and without jurisdiction. Basanta Kumar Chowdhury Vs. State (1961) 13 DLR 226 : 1962 PLD 61.
Criminal Law (Amendment) Act (XL of 1958)
S. 2(»)~"Appropriate Government" has reference to the time of the commission of the offence. State Vs. Saeed Ahmed (1962) 14 DLR (SC) 142:1962 PLD (SC) 320.
S. 2(b)-Railway servant in respect of offence of cheating, not a public servant. For offences falling under section 419 and 420, P.P.C., a railway employee, in view of section 137(1) (4), of the Railways Act, is not a public servant within the meaning of section 21, P.P.C
Trial by Special Judge under Pakistan Criminal Law Amendment Act, of railway employee for charges under sections 419 and 420, as a public servant, without jurisdiction. Md. Halim Vs. State (1963) 15 DLR 282.
S. 2(b)— The two accuseds (who are railway employees) in the present case who have been charged with an offence of criminal breach of trust, shall have to be tried by Special Judge under the Criminal Law Amendment Act. Slate Vs. Ali Akhler (1966) 18 DLR 684.
S. 3(l)--Sessions Judge appointed Special Judge by Central Government—Notification is competent to try offences specified in the Schedule to the Prevention of Corruption Act, 1947 committed by a Central Government employee. Syed Imdad llussain Naqi Vs. State (1963) 15 DLR (WP) 66.
S. 4--Seclion confers jurisdiction on Special Judge for taking cognizance. A. S. S. Mohammad Ali Vs. The State (1983) 35 DLR (AD) 324.
Sees. 4 and 6—Provisions made under section 4 of the Cr. Law Amendment Act enabling the Special Judge to take cognizance of an offence either on a complaint or police report can not be construed as meaning that the requirement under clause (e) of section 195 (I) Criminal Procedure Code for making a complaint in writing by the court concerned can be rendered nugatory and may be dispensed with since section 6 of Cr. Law Amendment Act provides that provisions of the Criminal Procedure Code which are not inconsistent with the provisions of Criminal Law Amendment Act shall be applicable in a trial held by a Special Judge under the Cr. Law Amendment Act. Muslim Khan Vs. State (1986) 38 DLR (AD) 60.
—Ss. 4-6
S. 4(1)—Petitioner's name was shown in col. 2 of the Charge-sheet—On Public Prosecutor's application before the Special Judge before whom the case of another accused was pending that the petitioner should be brought up as an accused; the Judge asked for sanction for prosecution of the petitioner and the Supdt. of Police gave the sanction:- Held, such sanction not being in accordance with S. 4(1) of the Cr. Law Amendment Act, prosecution of the petitioner is illegal. Khorshed Alam Vs. The State (1975) 27DLR 111.
S. 4(l)"Special Judge can take cognizance of offence upon complaint or upon report in writing. Abul Mansur Ahmed vs. State (1961) 13 DLR 353: 1961 PLD (Dae.) 753.
S. 5(1), (6)--Offence of criminal breach of trust by public servant exclusively triable by the Special Judge with sanction by appropriate Government. All Ahmed Vs. Slate (1962) 14 DLR (SC) 81 .-(1962) PLD (SC) 102.
-Offences committed under section 409 P.P. Code, when the accused was a public servant-sanction accorded when he was not public servant-offence under section 409 exclusively triable by the Special Judge and trial held is valid even though sanction in law may not be necessary. All Ahmed Vs. State (1962) 14 DLR (SC) 81 : (1962) PLD (SC) 102.
S. 5(1)--An offence u/s. 409 of the Penal Code is exclusively triable by a Special Judge on a written report by the Police or the Bureau of Anti-corruption. A. Mannan Vs. U.N.O., Kalmakanda (1987) 39 DLR 412.
-An Upazila Magistrate has no jurisdiction to take cognizance of an offence u/s. 409 of the Penal Code against public servant. A. Mannan Vs. U.N.O., Kalmakanda (1987) 39 DLR 412.
S. 5(2)—When the special Judge has acquitted an accused before framing charge—the accused can not be said to have "tried" and such acquittal is no bar to a second trial in respect of same offence. State Vs. Md. Shaft (1964) 16 DLR (WP) 30.
S. 5(6)—Provision of sub-section 6 of Section 5 of the Criminal Law Amendment Act contemplates power of the Special Judge to order investigation or further investigation by a Police Officer at any stage of the proceeding before cognizance has been taken and trial has begun. Kazi Nurul lloque Vs. The State (1983) 35 DLR 352.
S. 5(6)--Spccial Judge may direct further police investigation only when cognizance of the case not taken or before commencement of the trial. Kazi Nurul HaqUe Vs. State (1983) 35 DLR 352.
S. 5(7)--Joint trial of offence, can be held by Special Tribunal. Kazi Mozharul Iluq Vs. State (1981) 33 DLR 262.
Sees. 6 & 5(6) Effect of both the/ sections.
The combined effect of the provisions embodied in sections 6 and 5(6) of the Pakistan Criminal Law (Amendment) Act, 1958 is that cases falling wilhin the ambit of the Pak. Cr. Law (Amendment) Act, 1958, arc to be tried as Sessions cases without the preliminary commitment procedure laid down in Chapter XVIII of the Code of Criminal Procedure. Stale Vs. Md. Shaft (1964) 16 DLR (WP) 30.
S. 6(1)—Special Judge appointed under the Act, when trying cases invested with the power of Sessions Judge acting without assessors or jury.
Section 6(1) of the Criminal Law Amendment Act (XL of 1958) in clear language says that the Court of Special Judge shall be deemed to be a Court of Session. Trying cases without the aid of Assessors or Jury, and that the provisions of the code of Criminal Procedure, except Chapter XXXVIII, shall apply to the proceedings of a Court of Special Judge. The Act in un-ambiguous language confers on the court of a Special Judge, the status of a court of sessions. Furthermore, except a minor chapter, whole of the Criminal Procedure Code applies to a proceedings of such a Court. The Court of a Special Judge is in terms of the said act a Criminal Court with the power and status of a Court of Sessions. Haider all Vs. Bangladesh (7976) 28 DLR (Apl. Division) 115.
S. 6(4)--Special Judge when trying on a charge under section 162 P.P.C. not competent to try the same accused under section 384 P.P.C. Monoranjan Dey Vs. State (1959) 11 DLR 172.
S. 6(5)--The Special Judge in this case held that cognizance of the accused, Abdur Rahim, a public servant, was taken on 22.5.75 without there being a sanction to prosecute him and also without writing by the Trial Judge to the Government for sanction and as such renders the prosecution of the accused illegal u/s. 6(5) of the Cr. Law Amendment Act, 1958. Bangladesh Vs. Abdur Rahim. (1983) 35 DLR 249.
-Ratio decidendi of the cases decided before the amendment of Act (XL of 1958) reported in DLR volumes 9 and 10. Bangladesh Vs. Abdur Rahim. (1983) 35 DLR 249.
--Sanction having been accorded before the framing of the charge there can be no defect in the procedure and trial can proceed according to law. Bangladesh Vs. Abdur Rahim (1983) 35 DLR 249.
-If the Special Judge fails to write to the appropriate authority for necessary sanction for prosecution, if however the sanction is accorded before the charge is framed, the proceeding will be in compliance of law. Bangladesh Vs. Abdur Rahim. (1983) 35 DLR 249.
S. 6(5) 1st. proviso-Under the 1st proviso lo s. 6(5), if the complaint or report is not accompanied by sanction, the Special Judge is to address the Govt. for sanction—This writing to the Govt. for sanction amounts to taking cognizance of the case or initiates a proceeding in connection with the prosecution of the case. Cases reported in (1957) 9 DLR 109 & (1958) 10 DLR 321 & 370 can no longer be treated as good law. Bangladesh Vs. Abdur Rahim. (1983) 35 DLR 249.
S. 6(5)-What sub-section (5) of s. 6 provides—Section 6(5) is as follows:
"(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, previous sanction of the Government shall be required for the prosecution of a public servant for
an offence under this Act and such sanction shall be sufficient for the prosecution of a public servant for an offence triable under this Act.
Provided that in case where the complaint or report referred to in sub-section (I) of section 4 is not accompanied by such sanction the Special judge shall, immediately on receipt of the complaint or report, address, by letter, the Government, in the matter, and if the required sanction is neither received nor refused within sixty days of the receipt of the letter by the Government, such sanction shall be deemed to have been duly accorded." A.S.S. Mohammad All Vs. State (1983) 35 DLR (AD) 324.
-Prosecution of public servant-—Sanction for prosecution. If the complaint u/s 4 not accompanied by sanction the Special Judge required to write to the Govt for sanction—If it is not received within 60 days, the presumption is sanction has been accorded-In case of transferred case no further sanction necessary. A.S.S. Mohammad All Vs. State (1983) 35 DLR (AD) 324.
-If the Special Judge has failed to write to the Govt. for sanction there is thus a breach of the provision of law and it can not be assumed that sanction has been given—In that case court will have no jurisdiction to try the case. A.S.S. Mohammad Ali Vs. State (1983) 35 DLR (AD) 324.
-It is essential that the Special Judge must write to the Govt. for sanction—If this condition is not fulfilled there can be no prosecution. A.S.S. Mohamad Ali Vs. State (1983) 35 DLR (AD) 324.
—No sanction for prosecution necessary if the public servant concerned ceased to be a public servant when the Court takes cognizance of the offence. Jamdher Khan Vs. The State (1975) 27 DLR (AD) 35.
.--Sanction needed only for prosecuting a public servant. State Vs. Saeed Ahmed (1962) 14 DLR (SC) 142 : (1962) PLD (SC) 320.
Sanction—Charge of misappropriation—fact which must be shown to have been placed before and considered by sanctioning authority. Where the order of the appropriate authority giving sanction for the prosecution of the accused did not show anywhere what papers were put up before him and what issues were involved, nor any extraneous evidence had been given in the case to prove that the sanctioning authority was made aware of the details and of the explanation given by the accused. Such a sanction was a mechanical sanction and is not valid. Abdul Awal Vs. State (1961) 13 DLR 397:1962 PLD (Dae) 623
—Accused was a public servant at the time when the offence alleged was committed, but ceased to be so at the time of the trial—prosecution not invalid.
Public servant committing offence of cheating under section 420 P.P.C.—Cannot be said to be acting in discharge of his official duty—No sanction for prosecution necessary. Slate Vs. Sikandar Khan (1963) 15 DLR (WP) 1
-Prosecution in respect of a person who has ceased to be a public servant when prosecution started, will require sanction for offence committed while acting as a public servant. Held: Although the offence is said to have been committed at a time when the appellant was in office as a Minister and although the prosecution was sought to be started at the time when he had ceased to be a Minister yet it was necessary for the institution of the prosecution against him that sanction from the appropriate Government should be obtained. Shaikh Mujibur Rahman Vs. State (1963) 15 DLR 549.
—Prosecution of a public servant no longer in service under this Act, if necessary. In case of a person who has ceased to be public servant there is no appropriate Government having control over him at the time of sanction. No sanction is called for such a person's prosecution and if a sanction was given it was a superfluity. Abul Monsur Ahmed Vs. State (1961) 13 DLR 353 : 1961 PLD (Dae) 753.
—Breach of the mandatory provision of subsection (7) of section 6 does not vitiate,the trial unless the accused is prejudiced.
Failure to supply the accused with the statement of the witnesses one week before the commencement of the trial as required by section 6(7) of the Act, even though it constitutes a breach of the mandatory provision, cannot be said to be an illegality vitiating a trial or proceeding and, unless the accused is prejudiced, it will not warrant quashing a conviction. Muhbubur Rahman Vs. State (1960) 12 PLD 66: DLR (Dae) 344.
—Infringement of the mandatory provision of section 6(7) does not vitiate the trial unless the accused is prejudiced. Md. Hasan All Chowdhury Vs. State (1961) 13 DLR 581.
-"May act on the evidence already produced or recorded and continue the trial from the stage which the case has reached." Evidence recorded by the committing Magistrate before commitment of the accused to the Sessions Court cannot be used by the Special Judge as evidence for the disposal of the case pending before him. The proceedings before the committing Magistrate cannot be treated as the stage from which a trial can be continued inasmuch as no trial had commenced in court of the committing Magistrate. Shamsuddin Ahmed Vs. State (1959) 11 DLR 508 : 1960 PLD (Dae) 205.
-Sanction for prosecution of a person who was a public servant when the offence cognizable under the Act was committed but ceased to be so when the Court took cognizance of the offence—Not necessary. Nazir Hussain'Vs. State (1965) 17DLR (SC) 26.
Sees. 6(5) read with Sec. 5—Sanction when the accused no longer public servant. The Special Judge was wrong in acquitting the accused on the ground that sanction for his prosecution was given when he was no longer in service inasmuch as in such a case the Special Judge's jurisdiction to try the case is not ousted. State Vs. Raja Khan (1964) 16 DLR(WP) III.
S. 8--Evidcnce recorded by Magistrate after he had lost jurisdiction over the case cannot be legally treated as evidence and conviction based thereon illegal and without jurisdiction. Basanta Kumar Chowdhury Vs. State (1961) 13 DLR 226:(1962) PLD (SC) 61.
S.9--Expression "gain found to have been derived".
Section 9 of the Pak. Criminal Law (Amendment) Act, 1958, which requires that when any person charged before a Special Judge with an offence triable under the said Act is found guilty of the offence, the Special Judge shall, notwithstanding anything contained in any other law, whether or not he imposes a sentence of imprisonment, impose a sentence of fine which shall not be less than the gain found to have been derived by the accused by the commission of the offence. State Vs. Nazir Hossain (1964) 16 DLR(WP) 48.
When breach of trust is committed offence is complete—Refund does not make any difference.
Immediately the offence of criminal breach of trust is committed, the accused has derived a gain within the meaning of section 8 of the Pakistan Criminal Law (Amendment) Act. 1958, and the fact lhat he subsequently refunds the money being immaterial. State Vs. Nazir Hossain (1964) 16 DLR (WP)48
S. 10—Revision against the order of acquittal filed after period of limitation cannot be rejected on the sole ground of delay—Judge in disposing of petition entitled, nevertheless, to take into consideration factor of delay-Unexplained delay of more than a year—Interfce by the Court in revision refused. State Vs. Raja Khan (1964) 16 DLR (WP) 121.
Criminal Procedure Code (V of 1898)
S.I—Special jurisdiction for trial of contempt of court—not exercised under provisions of Cr.P.C.—Cr.P.C not applicable lo proceedings in exercise of speical jurisdiction. G.S. Gideon Vs. State PLD 1963 (SC) 1
S. l(2)--The East Pakistan Ordinance XII of 1956 being a special law, all its provisions as regards the jurisdiction of the Courts and procedure to be followed are saved by sub-section (2) of section 1 and sub-section (2), S. 5'Cr.P. Code. Chief Secy. Vs. Moslemuddin (1957) 9 DLR (SC) 20A
—The words "in the absence of any specific provision to the contrary" - What they refer to.
The words "in the absence of any specific, provision to the contrary " in section 1(2) mean and contemplate a provision specific in affecting the special or local law. It means that there may be a specific provison in the special or local law that the Cr.P. Code will apply to the proceedings under the Act. If it is not so provided, Cr.P. Code will not apply. Gahena Vs. The State (1968) 20 DLR (WP) 271.
Sections 1(2) and 5(2)--Meaning of both these sections when they are read together : The position which emerges is (a) that all the offences under the Penal Code are to be investigated, inquired into and tried in accordance with the procedure in the Criminal Procedure Code; (b) that an offence under a special or local law is likewise to be governed by the procedure given in Cr.P.Codc unless the special or local law provides for a different procedure; and (c) that in respect to all other matters, covered by special or local law, the Cr.P.Code is not applicable, unless there is a specific provision to that effect. Gahena Vs. The Stale (1968) 20 DLR (WP) 271
S. l(2)--The effect of section 4(2) in the background of section 29 of the Code is that where the special law provides for trial of particular offences by particular courts they shall be so tried exclusively. Bangladesh Vs. Shahjahan Siraj (1980) 32 DLR (AD) 1.
S. 2(1)—Chittagong Hill tracts—Cr.P.C is applicable to area. State Vs. Ain Khan (1961) 13 DLR 911.
—S4(l)—"Investigation", when deemed to begin —Agreement to receive bribe, and actual receipt of bribe—-are two offences—Investigation begins at different moments.
(Sajjad Ahmed,J.)—Investigation for an offence under section 4(1) of the Act starts, when the first step is taken towards investigation qua the offence actually investigated. If the investigation has been initiated for the offence of the demand of illegal gratification, it starts as soon as the police officer, takes a step to ascertain the facts and circumstances of the demand having been made for illegal gratification, and the circumstances connected with the laying of the trap would be steps in that investigation to test the veracity of the allegation about the demand. But if the allegation about the demand has been ignored and no step has been taken for ascertainment of facts and circumstances for its detection and the trap is laid to build up the separate offence of "actual receipt of the bribe", even though its genesis lies in the allegation regarding the illegal demand, the investigation qua that offence will start after the commission of that offence. Investigation follows the suspected commission of the offence and does not precede it. Ghulam Abbas Vs. The State (1968) 20 DLR (WP) 48.
S.4(b)—Complaint—who may make. Any person who knows about the commission of an offence may make a complaint. Jassumal Vs. State PLD 1962(WP) Karachi 326
S. 4(b)—"Investigation" what the term connotes. Under the Code of Criminal Procedure the word "Investigation" generally consists of the following steps: (I) proceeding to the spot (2) ascertainment of facts and circumstances of the case (3) discovery and the arrest of the suspected offender or offenders and (4) collection of evidence relating to the commission of the offence alleged which may consist of (a) the examination of various persons including the accused and the reduction of their statements into writing/if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial and (5) formation of the opinion as to whether on the materials collected there is a case to place the accused before a court for trial and if so, taking the necessary steps for the same by the filing of a charge-sheet under section 173 of the Criminal Procedure Code. Mr. Moshanaf Hossain Vs. State (1978) 30 DLR (SC). 112.
S.4(h)—Complaint—Definition of—means allegation made orally or in writ ing to a Magistrate with a view to his taking action under the Code that some person whether known or unknown .has committed an offence. Jagadish Chandra Vs. ' Joynarayan (1962) 14 DLR 198.
S.4(l)(h)--Compiaint does not require statement of facts beyond allegation that some person has committed, an offence. Ghulam Mohammed Vs. Ghulam Mohammed Khan 5 PLD (BJ.) 72.
S.4(l)(f)—Revenue Officer conducting judicial proceedings—Not a Court—Not competent to punish for contempt. State Vs Muhammed Idris All Sikdar PLD 1965(SC) 677.
S. 4(l)(ra)--Officer acting under section 93A of the Dacca Town Improvement Act is not engaged in 'Judicial proceeding' within the meaning of section 4(l)(m) of the Code as contemplated by section 228, P.P.Code. Aziza Khalun Vs. The State (1967) 19 DLR 355.
S.4(l)(r)--"Any other person appointed with the permission of the Court"—such person must be duly appointed by the accused and the requisite permission of Court obtained to represent him. llabib Ullah Khan Vs. Md. Hossain 4 PLD (J & K) 38.
S. 4(1) cl. (t)--Public Prosecutor includes Assistant Public Prosecutor.
The definition of "Public Prosecutor" in clause (t) of section 4(1) of the Criminal Procedure Code includes Assistant Public Prosecutors and any other person who conducts a prosecution under the directions of the Public Prosecutor. Superintendent & Legal Remembrancer Vs. Aminul Huq & anr. (I960) 12 DLR 324—{I960) PLD (Dae) 783.
S.4(l)(S)--PoIice Lockup can be located only in police station —Detention of under Trial prisoner in C.I.A office—Illegal. State Vs. Mohd. YusufPLD 1965 (WP) Lahore 324.
S. 5(2)--The mode of trial dealing with offences of any other law, subject to any enactment for the time being in force, has been prescribed Under S. 5(2) of the Criminal Procedure Code. Delwar All Khan Vs. Sajedul Hague (1986) 38 DLR (AD) 52.
S.5(2)--The East Pakistan Ordinance XII of 1956 being a special law, all its provisions as regards the jurisdiction of the Courts and procedure to be followed are saved by sub-section (2) of section 1 and sub-sec. (2), S.5, Cr.P.Code. Chief Secy. Vs. Moslemuddin 9 DLR (SC) 204.
6(1) and 10(4)--Court's consent, which is a requirement under section 494 Criminal Procedure Code, is not necessary for withdrawal of a case before a Special Judge for trial under Act LX of 1958 (Criminal Law Amendment Act). When the Public Prosecutor, who is appointed as such under Act of 1958, under the direction of the Government, files an application for withdrawal of such a case pending before the Special Judge, the latter has no alternative but then and there to record an order of withdrawal and stop further proceeding. The Investigating Authority has no say in this matter. Any interference by the Investigating Authority concerning the matter of withdrawal is u
unwarranted. Taskinuddin Talukdar Vs. The Slate, (1973) 25 DLR 174.
9(3)--All Assistant Session Judges are deemed to be Addl. Sessions Judges when a District Magistrate, Addl. District Magistrate or any first class Magistrate is specially empowered to try any offence. Asstt. Sessions Judges deemed to be Addl. SessionsJudge may exercise powers and discharge functions of the Addl. ScssiomJudge subject to any limitation as may be prescribed. Nazir Ahmed Vs. Yonus Miah (1984) 36 DLR 96.
—Asslt. SessionsJudge deemed to be appointed Addl. SessionsJudge may hear appeals, revisions and references when such cases are transferred to him by, the SessionsJudge.
An Assistant SessionsJudge deemed to have been appointed as Addl. SessionsJudge under the proviso to section 9(3) Cr.P.C. by legal fiction is to be treated as an Addl. SessionsJudge not only for the purposes of trial of sessions cases but also for the purposes of hearing appeals, revisions and references if they are made over or transferred to him (by the Sessions Judge). Adbul Latif Vs. Nurjahan Begum (1985) 37 DLR 204.
S.9(3)--Assistant Sessions Judge became Additional Sessions Judge in the course of the trial. Conviction by the Judge must be regarded as a conviction by the Additional Sessions Judge from which an appeal lay to the High Court. Askar Ali Vs. State (1959) 11 DLR (SC) 226 (1959) IX PLR (SC) 1378 (1959) PLD (SC) 251.
-As against a judgement passed by Asstt. Sessions Judge deemed Addl. Sessions Judge convicting and sentencing a -person in any manner, if the High Court Division is to entertain appeal against such conviction u/s.410, section 408 would become redundant. Under section 408 as against a conviction inflicted by Asstt. Sessions Judge appeal will lie to the Sessions Judge, but if the conviction exceeds 5 years, clause (b) of proviso to section.408 provides that in that case appeal will lie to the'High Court Divsi on and not to the Sessions Judge. Md. Mustafa Mandal Vs. State (1983) 35 DLR 362.
S. 9(3)
S.29C--(newly) added by Ordinance 24 of 1982 on 21.8.82). [All Asst. Sessions Judges are now deemed Asstt. Session Judge, and may pass any sentence excepting death sentence. The decision of this question (referred to in para 1 of the Judgment) has immense public importance in view of the fact (hat a new section 29C has been inserted in the Criminal Procedure Code by Ordinance No.XXIV of 1982 empowering all First Class Magistrates to try all offences not punishable with imprisonment exceeding 10 years. All Assistant Sessions Judges all over the country are now deemed to have been appointed as Additional Sessions Judges with all the powers thereof excepting sentence of death. Md. Mustafa Mandal Vs. State (1983)35 DLR 362.
Asstt. Sessions Judges becomes Addl. Sessions Judges as soon as any First Class Magistrate is empowered to try offences as provided in new sec. 29C.
Sub-section. (4) newly added says that under-the proviso to S.9(3) Asst. Sessions Judge may pass any sentence excepting one of death. Md. Mustafa Mondal Vs. State (1983) 35 DLR 362.
S.10--Additional District Magistrate can lawfully perform functions of the District Magistrate in authenticating a declaration. Waliul Bari Chowdhury Vs. District Magistrate, Kushlia (1986) 38 DLR (AD) 256.
S. 10 (2)—Trial of a case transferred to a Magistrate under section 3(54) of the Bengal Municipal Act by a Magistrate who is not the District Magistrate is without jurisdiction and to such case sec. 10(2) of Cr.P.C. is not applicable. Abdul Kader Vs. Chairman Dacca Municipality (1958) 10 DLR 205.
--Powers conferred u/s 10(2)-May be exercised even after transfer to another post in same local area. Tariq Mahmood Vs. Slate PLD 1962 Lahore 939.
—Section l2--District Magistrate (now the Deputy Commissioner) is competent to alter the local limits of a police-station or a subdivision with the concurrence of the Provincial Government. Abdul Hamid Howlader Vs. The Province of East Pakistan, (1972) 24 DLR 142.
—Jurisdiction of Magistrate—Extends to whole district—May be determined by order of D.M. within the District. Basher Ahmed Vs. Chief Commissioner PLD 1962 (WP) Karachi 249.
Ss.-14, 17«Special Magistrate—Subordinate to D.M. Appeal from order of Special Magistrate forfeiting bond lies to D.M. Mansha Mohd. Khan Vs. State PLD 1963 AzadJ & K 36.
S. 17--First Class Magistrates are subordinate to the District Magistrate even in respect of judicial functions. Anwar Mahmud & ors Vs. Rashidui Zatnan (1959) 11 DLR (WP) 77.
S. 17(2)—The subordination referred to in section 17(2) cannot possibly mean that the Sub-divisional Magistrate thereby acquired the powers of himself revising the orders of another Magisirate of the First Class or of sitting on appeal over the lattcr's order. The only practical effect of this subordination is to make such a Magistrate an inferior criminal court within the meaning of sec. 435(1) Cr.P.C. Abdul Kader Vs. Crown (1955) 1 DLR 637(642)
S.17(4)--Applies only to Sessions Judges and not to Additional SessiomJudges—Since on the day of the order complained of, the Sessions Judge was present at his headquarters the Additional Sessions Judge had no jurisdiction to entrust his urgent business during his absence to the District Magistrate under that provision. Mupal Vs. Ghulam 5 DLR (WPC) 86.
S.26--A Special Tribunal constituted under section 26 of the Special Powers Act, upon a charge submitted through a report in writing by an appropriate Police Officer under section 27 of the Said Act, can try exclusively only such offences as are mentioned in the Schedule to the Act. Tamiz "Miah Vs. Govt. of the People's Republic of Bangladesh. (1981) 33 DLR 203.
--Joinder of scheduled and non-scheduled offences is an illegality. Joinder of scheduled and non-scheduled offences was illegal and the trial by the Special Tribunal for both scheduled and non-scheduled offences was also without any lawful authority. Tamiz Miah Vs. Govt. of the People's Republic of Bangladesh. (1981) 33 DLR 203.
S. 28--Court mentioned in S.28 is to try all offences mentioned in the Penal Code—Special Courts created under a Special Law are to have exclusive jurisdiction to try cases mentioned in the Special Law. Tamiz Miah Vs. Govt of the People's Republic of Bangladesh (1981) 33 DLR 203.
--Court mentioned in s.28 is to try all offences mentioned in the Penal Code — Special Courts created under a special law are to have exclusive jurisdiction to try cases mentioned in the special law. Tamiz Miah Vs. Govt of the People's Republic of Bangladesh (1981) 33 DLR 203.
S.28 read with S. 30--First Class Magistrate with powers u/s 30 can try an offence u/s 304 P.P.C. According to sec. 28 a case under section 304 P.P.C. is triable by the court of sessions but section 28 is to be read, as the words "subject to other provisions of the Code" indicate, along with sec.30, and the effect of reading them together is that an offence under section 304, P.P.C. becomes triable by a Magistrate of the First Class invested with powers under section 30 Cr.P.Code. Ghulam Ahmed Vs. State (1958) 10 DLR(WP)78.
Sec. 29--Magistrate's jurisdiction to try an offence-When the maximum sentence prescribed exceeds the limit of his power but the sentence imposed by the Magistrate which is within his jurisdiction — Trial legal. Abu Suflan Vs. Nurjahan Begum (1966) 18 DLR 230.
S.29(l)--Special Tribunal constituted under the Special Powers Act is a court within the meaning of S. 29(1). Such a court is to exercise its power as are specially conferred under the Statute. Md. Sher All Vs. Special Tribunal (1977) 29 DLR.
S. 29C--When the Asstt. Sessions Judges are to be deemed to become Addl. Sessions Judges. As soon as the District Magistrate, Additional District Magistrate or any Magistrate of the 1st Class is specially empowered u/s. 29C of the Code of Criminal Procedure to try any offence in a District, the proviso to sub-section (3) of section 9 Cr.P.C. enacts that all Assistant Sessions Judges of the Sessions Division within which the District is situate shall be deemed to have been appointed as Additional Sessions Judge of that Division.
Immediately after the empowering of the District Magistrate or any Magistrate of 1st. Class u/s. 29C of the Code of Criminal Procedure the statutory fiction is to be resorted to and it should be carried to its logical conclusion by giving full effect to the legal fiction that an Assistant Sessions Judge in that Sessions Division shall be deemed as if he has been appointed as Additional Sessions Judge for all purposes, namely for trying sessions cases as well as for hearing and disposing of appeals, references and revisions transferred to him by the Sessions Judge as the deeming proviso does not exclude the latter from the jurisdiction of Assistant Sessions Judge deemed to be Additional Sessions Judge. The only limitation that has been put by the law-making authority on the power of sentence by such an Assistant Sessions Judge deemed to have been appointed as Additional Sessions Judge is by adding sub-section (4) to section 31 Cr.P.C.
The Assistant Sessions Judge deemed to have been appointed as an Additional Sessions Judge under the provison to sub-section (3) of section 9 Cr.P.C. has rightly exercised his jurisdiction by hearing and disposing of the revision in exercise of his power u/s. 439A of the Code of Criminal Procedure when the said case was transferred to him by the Sessions Judge under sub-section (3) of section 439A Cr.P.C. deeming him or treating him to be an Additional Sessions Judge. Abu Taker Vs. Msl. Razia Begum. (1985) 37 DLR 18.
S. 29C (newly added by Ordinance 24 of 1982, on 21.8.82) The decision of this question (referred to in Para 1 of the judgment) has immense public importance in view of the fact that a new section 29C has been inserted in the Criminal Procedure Code by Ordinance No. XXIV of 1982 empowering all 1st Class Magistrates to try all offences not punishable with imprisonment exceeding 10 years. All Assistant Sessions Judges all over the country are now deemed to have been appointed as Additional Sessions Judges with all the powers thereof excepting sentence of death. Md. Mustafa Mandal Vs. State (1983) 35 DLR 362
Proviso to sub-sec. (3) of s. 9 and sections 408 and 410.
As against a judgment passed by Asst. Sessions Judge deemed Addl. Sessions Judge convicting and sentencing a person in any manner, if the High Court Division is to entertain appeal against such conviction u/s. 410, section 408 would become redundant. Under section 408 as against a conviction inflicted by Asstt. Sessions Judge appeal will lie to the Sessions Judge, but if the conviction exceeds 5 years, clause (b) of proviso to section 408 provides that in that case appeal will lie to the High Court Division and not to the Sessions Judge. Md. Mustafa Mandal Vs. State (1983) 35 DLR 362
S. 29C--Asstt. Sessions Judges become Addl. Sessions Judges as soon as any first class Magistrate is empowered to try offences as provided in new sec. 29C.
Sub.s(4) newly added says that under the proviso to. s 9(3) Asstt. Sessions Judge may pass any sentence excepting one of death. Md. Mustafa Mandal Vs. State. (1983) 35 DLR 362
—Particular offence carrying a sentence of punishment which exceeds-the limitof power which the Trying Magistrate could under law impose-Trial in respect of the offence not affected when the Magistrate imposes a sentence within the limits of his power. The limit on the power of awarding punishment does not affect the'competence of a Court to try the case. The Magistrate in the present case though not empowered under section 30, Criminal Procedure Code is however duly competent to try the case but all that he cannot do is to impose a sentence which exceeds the limit of his powers in awarding sentence. In the present case, the sentence imposed is within the powers of a Magistrate of the First Class in accordance with the third Schedule to the Criminal Procedure Code. Noor Hossain Vs. State (1966) 18 DLR'(SC) 176.
--S.30—Offence triable by Magistrate with S.30-{5owers of session Judge—Magistrate may commit case only for adequate reasons—offence triable by Sessions judge exclusively—No discretion as to commitment vests in Magistrate. State Vs. Ghulam Qadir PLD 1964(WP) Pesh 53.
S.30--Magistrate's power to impose penalties derived under section 193-B Sea Customs Act,is quite different from that derived under section 30 of the Cr.P.Code. A Magistrate trying a case falling in item 8(a) of section 167 Sea Customs Act is not acting under section 30 of the Cr.P.Code and thus proviso(a) to section 408, CrP.Codc not attracted in such a case.
In the case of a Magistrate specially empowered under section 193-B of the Sea Customs Act, his powers to impose penalties are not as wide as lhat of a Magistrate specially empowered under section 30 of the Code of Criminal Procedure. Section 193-B of the Sea Customs Act and" section 30 of the Code of Criminal Procedure stand absolutely on different footings; they are mutually exclusive and operate independently.
When a trying Magistrate is not empowered" under section 30 of the Code of Criminal Procedure, the proviso (b) to section 408 of the Code is not attracted there. Alok Kumar Mitra and others. Vs. The State (1969) 21 DLR 1.
-—Trial begun by 1st class Magistrate-judgment announced by Magistrate with S. 30 powers—If sentence for more than 2 years may be passed . Abdul Rashid Vs. State PLD (1961) (WP) Lahore 990.
S. 31(4)—Assistant Sessions Judges in view of s.31(4) can not pass a sentence of death—Except as regard the limitation in respect of sentence of punishment, the power of the Addl. Sessions Judge and those of Sessions Judgs Asstt.are equal. Nazir Ahmed Vs. Yonus.Meah. (1984) 36 DLR 93.
- If appeal against the judgment of Addl. Sessions Judges deemed as Addl. Sessions Judge is , to be filed in the High Court Division, instead of before the Sessions Judges, problem created by too many filings in the High Court Division is not the concern of a court of law. Nazir Ahmed Vs. Yonus Meah. (1984) 36 DLR 93.
S. 31(4) read with Chapters XXIII, XXXI & XXXIII. By adding a new sub-section (4) to section 31 which is in Chapter III of the Code of Criminal Procedure regarding powers of courts the lawmaking authority merely provided that "an Assistant Sessions Judge deemed to have been appointed as Additional Sessions Judge under the proviso to subsection (3) of section 9 may pass any sentence authorised by law except a sentence of death". The law-making authority did not make any amendment in Chapter XXIII of the Code of Criminal Procedure which deals with the. trial before the Court of Sessions and Chapter XXXI Cr.P.C. which deals with references and revisions.
By the said legal fiction, an Assistant Sessions Judge deemed to have been appointed as an Additional Sessions Judge shall have all the powers under the aforesaid three Chapters, i.e. Chapter XXIII, XXXI & XXXII of the Code of Criminal Procedure dealing with trials, appeals, references and revisions. Abu Taker Vs. Razia Begum (1985) 37 DLR 18.
S. 32--Trial of offence for which Court can not pass maximum prescribed sentence— competence of Court to try not affected. Noor Hasan Vs. State PLD 1966 (SC) 88.
S.33--Scction 33, Cr.P.C. read with sections 64 and 65 P.P.C. limits for imposing sentence of imprisonment, in default of payment of fine. Md. Shaft Vs. Crown 2 PLD (BJ.) 23.
S.33 (I)—The section governs both the cases where the offence is punishable with imprisonment and fine as well as where the offence is punishable with fine only. Maximum imprisonment in default of payment of fine is six months' simple imprisonment. The State Vs. Abul Kashem. (1985) 37 DLR (AD) 91.
S.33(I)(b)--Imprisonment, maximum, in default of fine: The term of imprisonment which-can be legally awarded in default of payment of fine is not to exceed one-fourth of the maximum term of imprisonment fixed for the offence. Abdul Hakim Bhuiya Vs. Gulabdi (1954)6 DLR 488.
S.35--Undcr section 35, from which, as amended in 1923, the word "distinct" before the word "offences" had been deleted, separate sentences for rioting and causing hurt and grievous hurt are legal even when the common object of the unlawful assembly was to commit assault. Aftan-Vs. Israfil 54CWN(DR)311.
--Sentence in case of several offences— Offences of receiving stolen property under sec.411, P.P.C—Property alleged to be part of 3 different thefts of different dates but recovered from accused at one and the same time—In the absence of evidence to prove that stolen articles were received at 3 different times, 3 separate convictions .and sentences cannot be sustained. Rafiquddin Vs. Crown (1955) 7 DLR(FC) 184.
—Sentence—Separate sentences for rioting and hurt—not proper.f/957; 9 PLD (Kar.) 801.
—A and four others were convicted under sections 143, 447, 379 and 427 of the Pakistan Penal Code and separate sentences under section 140, 379 and 427 of the said Code imposed on each of them. Held: That separate sentences were legal. 1 PLR (Dacca) 10
—Separate sentences for conviction on separate charges—not passed—Irregularity is'curablc under section 537, Cr.P.C. Zamir Hussain Vs. Crown I PLD(Lah)l79.
—Sentences of imprisonment in default of fine for two offences—may be ordered to run consecutively. All Newaz Gardezi Vs. Lt. Col. Md. YusufPLD 1962 Lahore 558.
Ss. 44, 107—Likelihood of breach of peace—persons knowing arc not bound to inform police. Umar Khan Vs. State PLD 1962 (P.W.) Karachi 873.
Ss. 46, 50—Attack by deceased with light stick or cane—Right of private defence docs not extend to causing death. Pirano Vs. Stale PLD (1962) (W.P) Karachi 106 (DB).
S. 46(2)—Un'dcr sub-section (2) of section 46, a person entitled to arrest can use all means in his power to arrest the culprit. This would include the employment of other persons to effect the arrest. Md. IshaqVs. Crown 6 (WPC) 157 (161 r-h-col.)
S. 54—Arrest effected in Karachi of a person accused of murder committed in India—Sanction of Central Government for detention of accused obtained more than two months after arrest— Detention legal. Akhtar HussainVs. Crown 3 PLD (Sind.) 66.
S. 54—Arrest without warrant—when police officer may arrest—private person has no power to do so. Khan Vs. Stale PLD 1961 (W.P.) Lahore 630.
Ss. 54, 60, 61, 107—Provisions of Sections explained. Generally the police can not arrest a person accused of a non-cognizable offence without a warrant from a Magistrate though under certain circumstances the police can arrest for non-cognizable offence also. But when a person is concerned in a cognizable offence the police can arrest him without warrant under section 54 of the Code. Section 60 provides that a police officer making an arrest without any warrant shall, without unnecessary delay and subject to the provisions of bail, take or send the person arrested before a Magistrate having jurisdiction in the case or before the officer in charge of a police station. Under "section 61 it is provided that no police officer shall detain in custody person arrested without warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not, in the absence of a special order of a Magistrate under section 167 exceed 24 hours exclusive of the time necessary for the journey from the place of arrest to a Magistrate's Court. Therefore, unless a police offcer considers that he can not complete the investigation within a period of 24 hours it is incumbent upon him to forthwith produce the accused before a Magistrate. Abdur Rahman Vs. State (1977) 29 DLR (SC) 256.
S. 55—A contemplated proceeding under section 110, Cr. Procedure Code, against a person is no bar against his arrest under section 55 of the Code by police without warrant if he is liable to arrest under the provisions of that section. Navas Vs. Crown (1955) 7 DLR 361.
Ss. 55, 110—Proceedings u/s 110 contemplated against person, police may arrest accused under section 55. Mohammad Montazuddin Vs. Shamsur Rahman PLD 1964 Dacca 618',16 DLR 38.
S..59—"In his view"—Accused with their guns killed one person and injured another and then started running to effect their escape. A and M who had been coming from the opposite direction heard the gun shots but did not see the actual incident. Witnesses who saw incident shouted out to A and M to arrest the accused as they had killed a man. When A and M advanced to arrest them the two accused fired two more shots injuring A and M.
On a charge under section 307, P. P. C., in respect of attacks on A and M it was contended on behalf of the accused that A and M had no right to arrest the accused as no non-bailable cognizable offence had been committed "in his view" and therefore as against the attempts by A and M to arrest them the accused had the right of private defence.
Held: The words "in his view" are to be liberally construed. In the circumstances of the present case the offence can very really be said to have been committed in the view of A and M for it is by the evidence of their own eyes and ears that they discerned its existence. What they saw and heard left no doubt in their minds that the accused were running away after firing at the people. Md. Ishaq Vs. Crown (1954) 6 DLR(WPC) 157.
S. 59—Right of a private person to arrest" any person who in his view commits a non-bailable and cognizable offence" is restricted to exercise of such right of arrest when such offence is actually seen being committed. State Vs. Muhammad Akbar (1966) 18 DLR (SC) 299.
S. 59—Arrest by private person— Persons actually witnessing commission of cognizable and non — bailable offence and also persons who come to their assistance on hearing their outcry for help can apprehend offenders—Expression "in his view" occurring in section 59 explained.
Section 59 should not be construed so as to burden the Legislature with the intention that in providing the shield to private individuals to apprehend the culprits who commit cognizable and non-bailable offences in their presence, it had intended that this shield is to be limited only for those individuals who actually see the commission of the crime by their own eyes and is not available to those who come to their assistance on their outcry for help. Such a restricted view, in our opinion, would destroy the much-wanted but rarely displayed public spirit on the part of the neighbours and others who might come to the rescue of the victims of dastardly crimes and help them in bringing the culprits to book. In this view of the matter and the circumstances of this case, we arc of the opinion that Sultan had no Justification whatsoever to fire at Ali Muhammad deceased and that his act amounted to clear murder. Sultan Ahmad Vs. the Staie(1970) 22 DLR (SC) 162.
—A private person may arrest any one who in his view commits a non-bailable and cognixablc offence or is a proclaimed offender. The offence committed by the appellant fell under section 308 of the P. P. G. An offence under that section though cognizable is bailable and therefore the attempt of B to arrest the appellant was not justified in view of section 59 of the Code of Criminal Procedure. Nawab Vs. Crown 5 DLR (Lah.) 207.
— "In his view" Interpretation should be liberal—persons who heard the shouts and saw people following the accused—If may arrest them on being called upon to do so by those who saw the commission of the offence. Murad Vs State PLD1961 Karachi 137.
—Private person—when may arrest an offender. Khan Vs Stale PLD 1961 (WP) Lahore 630.
S. 59(1)—An offence under section 19 of the Arms Act (XI of 1878), though cognixablc, is bailable and therefore the attempt by a private person to arrest a man carrying an unlicensed arm is not justified by section 59, Cr. P. Code. A ta Muhammad Vs. Crown 3 PLD(Lah) 279(234).
S. 61—Remand the police granted at place other than court by Magistrate—Illegal. State vs Mohd YusufPLD(1965) WP Lahore 324.
Ss. 61, 164. 167—Accused kept in custody for more than 24 hours—improper—Effect— confessional statements may be admitted when no evidence of duress. State vs Ali Ahmed (1964) 16 DLR 558
Ss. 61, 167, 173—Production of accused before Magistrate under section 61 and the courts order therein docs not mean taking cognizance. Police submitting final report before completing investigation, an order of discharge therein is not a judicial order. Abdur Rahman Vs Stale (1977) 29 DLR (SC) 256.
S. 64—Applicability—Applies where obvious offence is committed—Docs not apply where ascertainment of commission of offence depends upon inquiry. A. K. Khalid Vs. Ghulam Quadir Khan, PLD 1962 (W.P) Lahore 411; 14 DLR (W.P.) 25.
S. 68(2)—Dafadars and Chowkidars arc not public servants within the meaning of section 21 P. P. Code, but arc public servants for the purpose of serving summons under section 68(2), Cr. P. Code. Loknath Vs. Crown (1955) 7 DLR 344; Chand Khan Vs. Crown 2 PCR 21.
—The issue that dafadcrs and chowkidars arc not public servants has been overruled; vide 9 DLR 323
S. 71—Service by affixture can only be availed of if service in the manner specified in sections 69 and 70 cannot by the exercise of due diligence be effected. 43 Cr L J. 113.
S. 76—Upon receipt of a report in writing from the Tahshildar, alleging that the two petitioners, who arc father and son, "uttered ugly words to me and my collecting staff and they are trying to take illegal action against us which would create troubles on my life in furturc if the culprits be not brought to book," the S.D.O. passed the following order :-
"Seen report of Tahashildar, Naogaon. Issue W/A with bail of Rs. 15.000/- each three local sureties of the like amount each I/D to hajot under sec. 186 PPC. The local sureties to be accepted to the satisfaction of S.D.P.O. Put up with other cases in this connection." Held: The S.D.O. has gone off the rail by directing that the sureties are to be accepted to the satisfaction of S.D.P.O. If the warrants were directed to the S.D.P.O. there would be no question of providing in the order that'sureties were to be tested by the S.D.P.O., and if it was to be directed to some other officer the requirement of, the sureties being tested by the S.D.P.O. before acceptance of the bond would tantamount to a direction to take and keep the petitioners in custody for some time before the sureties could be conveniently tested at leisure by the S.D.P.O. The section does not sanction such a procedure.
The S.D.O. should refer to the forms of warrants of arrest given in Schedule V appended to the Code of Criminal Procedure. The portion of the order relating to acceptance of the sureties to the satisfaction of the S.D.P.O. is deleted and in place of the figure Rs. 15,000/- the figure Rs. 50/- is substituted. Md. Abdul Jabbar Khan Vs. The Stale (1968) 20 DLR 828.
Ss.76, 427—Warrant issued by High Court—If Magistrate to whom they arc returnable can admit accused to bail. The State Vs. Shafaat Ahmed PLD 1961 Lahore 42
Ss. 87, 88—Defect in proclamation—No prejudice caused—Error curable under S. 537. Shah Mohd Vs. State PLD 1964 (WP) Lahore 243.
—Notice for proceedings not given— irregularity curable u/s 537. Abdur Rashid Vs. State 13 DLR 736; PLD (1962) Dacca —245.
—Processes under the section —When may be issued—Absconsion after issue of warrants is condition precedent for issue of process. Abdur Rashid Vs. State 13 DLR 736; PLR (1962) Dacca -245.
—Property of person other than one intended attached—Remedy of aggrieved person. Shah Mohd Vs. Stale PLD 1964 (WP) Lahore 243.
87(1)—Thirty days'time for surrender not given—proceedings do not become invalid in every case. Abdur Rashid Vs. State PLD 1962 Dacca 245', 13 DLR 736
S. 88 (3)—Effect of the order of attachment upon the contending parties. Abdur Rashid Vs. Slate PLD 1962 Dacca 245113 DLR 736.
The order restraining both the parlies from entering in the disputed land and appointing a Receiver for the same amounted to attachment of the Land according to the provision of section 88 (3) of the Cr.P.C. As such the order ,is not illegal. Sultan-uddin Ahmed Vs. Murshed All (1977) 29 DLR 72.
S. 89—Restoration of properly attached u/s. 87,88—order can be passed only u/s. 89—No inherent power to pass order. Abdor Rashid Vs. Slate PLD 1962 Dacca—245 ; 13 DLR 736.
Ss. 90 (b), 526—Summons not returned— Magislralc issuing bailable warrant—unjustified acl—ground for Iransfcr of case. Mohammad Siddik Vs. Slate PLD 1961 (W.P) Karachi 675.
S. 91—A woman, over whom iwo factions ihrcalcncd to commit a breach of the peace, was remanded to judicial custody by Magislrate. The order had no reference lo scclion 91, Cr. P. C, but was passed in ihe inlcrcsl of public iranquilily.
Held : Such a motive did not give .the Magistrate jurisdiction to confine any one in jail. The woman was adult and when such a woman is produced before a court the duly of a Magistrate is to allow her to go where she chooses. Crown Vs. Mst. Qaiser 7 DLR (WPC) 104.
S. 94—Notice to produce document-proceedings pending before Magistrate no notice can . be issued. Maqbul Hussain Vs. State PLD 1961, Dacca 795; 13 DLR 146.
S. 96—Where search warrant was issued on request of Customs aulhorilics for purpose of taking over documents and invoices. Held: The- invcstigalion by the Customs authorises was not authorised under the Code, and therefore the warrant, being issued for a purpose outside the scope of the Court's powers under section 96, was illegal. Tar Mohammad Vs. Crown (1953)5 DLR (WPC-)53.
—Search warrant when may be issued: The learned Magistrate in the present case being a first class Magistrate was quite competent to issue the search warrant under section 98 of the Criminal Procedure Code.
All that is required in the use of section 96 is that the Magistrate should act on information of the commission or suspected commission of an offence, if it is considered essential to the inquiry, etc. For application of section 98, it has only been stated that the Magistrate should try to get satisfied on -receipt of the information before issuing the warrant. Abdul Ilalim Vs. Shadhan Ranjan Dey (1968) 20 DLR 68.
—Pendency of proceeding and examination of the complainant not necessary: No proceeding or inquiry for the offence need be pending in cither case. Sufficient to say at this stage that in the case of section 98, the Magistrate is only to be satisfied that a particular place has been used for the deposit or sale of stolen property before he issues the search warrant. If pendency of any proceeding or inquiry is not necessary for the issuance of search warrant the examination of the complainant is also not necessary for the purpose. Such examination is necessary for taking cognizance only. Abdul Ilalim Vs. Sadhan Ranjan Dey, (1968)20 DLR 68.
S. 98—Seizure of stolen goods—For seizure of stolen goods no petition is required to be filed by the complainant in the case. Return of goods seized under section 98 Criminal Procedure Code—Section 98 docs not provide for returning goods to persons from whom the same had earlier been seized. Md. Yousuf All Vs. Munir Sonar, (1973) 25 DLR 206.
Ss. 99-A, 99-D:- The plain meaning of section 99-D is that the order of the Provincial Government passed under section 99-A can be set aside only if it could not have been passed on any of the grounds mentioned in section 99-A and not merely on the ground that the book which has been forfeited contains matter which though if falls under section 99-A of the Code of Criminal Procedure docs not offend against that section of the Penal Code which the Provincial Government was of the view that it offended. The Working Muslim Mission Trust, Lahore Vs. Crown(l 955)7 DLR (WPC) 17 (33).
S-99-A:- Different classes—"Different people" docs not mean different classes. Muhammad Ahmad Vs. Administrator of Karachi, PLD 1961 (WP) Karachi 129.
S-99-B:- Order of forfeiture upheld by High Court not on grounds stated by the Provincial Government but on another ground mentioned in section 99-A—High Court acted illegally. The Working Muslim Mission Trust, Lahore Vs. The Crown (1956)8 DLR(FC) 110 (117).
SS-99-B and 99-D—Order of forfeiture not justified under the provision under which it was made—High Court should not sustain it on other grounds. Mohammad Ahmed Vs, Administrator of Karachi PLD 1961 (WP) Karachi 129.
S-100:- Minor recovered under the section— May be given into custody of neutral person— Court's power of granting custody of minor are discretionary. Jahan Ara Begum Vs. stale PLD 1964 Dacca-42,15 DLR 148.
-Ss- 100, 92, 91—Allegation that woman was in illegal confinement—Search warrant under S 100 can not be issued. Ayesha Begum Vs. State.
—Person recovered on warrant issued under the section—Major—can not be detained in custody against his will. Jahan Ara Vs. State PLD 1963 Dacca 464 15 DLR 148.
—Woman recovered on warrant issued under the section—Must be produced before Magistrate—can' not be kept in detention against her will. Mohd. Sharif Vs,Lal Mohd. PLD 1962 Quetta 108,
S- 103:- Search should be conducted in the manner provided in section 103, Criminal Procedure —as.
Code - offence in the present case fell to be tried under the provisions of P.O. 50/72 In the absence of any compelling or substantial reason the provisions of section 103 of the Code of Criminal Procedure must be complied with while conducting a search. Daud All Vs. State (1975) 27 DLR 155.
—Failure to comply with S. 103— conviction may not be upheld.
Where the failure to comply with the provisions of section 103 leave the evidence in an unsatisfactory condition so that there is reasonable doubt as to whether the offending articles were really in the possession of the accused, the conviction ought not be sustained. Where neither of the two search witnesses belonged to the locality and one of them belonged to the rival parly of the accused and was also challancd in a criminal case u/s 107 Cr.P.C. the prosecution could not be sustained. Pachu Vs. the State (1974) 26 DLR 297.
—Procedure laid down in section 103 need not be followed by I.O. while seizing alamats. Majibur Rahman Vs. State (1987) 39 DLR 437.
—Search, illegality of—cannot vitiate the proceedings if the accused is found guilty. Crown Vs. Mohammad Siddique (1957)9 DLR(WPC) 16.
—"Locality" docs not mean same quarter of Town. Taj Mohammad Vs,Crown PLD 1950 B.J. 24
—Opium Act—Search under—section applicable
A search conducted after this issue of a warrant u/s 5 of Act (111 of 1867) is not a search under Chapter VII of the Cr.P.C. and section 103, Cr.P.C. can have no application. Nawab Din Vs. State PLD 1965 Lahore 340
S- 103(1)—Respectable witnesses of Locality must witness the search—witnesses not present at search—grave doubts may be entertained as to testimony of such witnesses. Sarder All vs state.l6 DLR (WP) 148;PLD 1964 Lahore 386
—Search of gambling den—section .not applicable. Nawab Din Vs.State PLD 1965 Lahore 340
—Witnesses of recoveries belonging to another village—Evidence of—can not be discarded. Meal Vs.State PLD 1962 Lahore 58
S-104—When partly inculpatory and partly exculpatory—Exculpatory portion to be rejected being contrary to evidence but court can convict the accused person on the basis of the inculpatory portion of the statement and the judicial statement of the accused is admissible as confessional statement. The State Vs. Badiuzzaman, (1973)25 DLR 41.
S. 107—Non-compliance with the provision of section 107 - Show cause notice as provided in sub-section (1) of s. 107 mandatory which cannot be dispensed with—In case of imminent breach of peace Magistrate, as provided in s.104, may issue warrant for arrest of a person. (1980) 32 DLR 352.
Ss.-107, 44—Likelihood of breach of peace-person knowing of bad blood between parties need not inform the police. Umar Khan Vs.State PLD 1962 Karachi 873
—Notice of exact accusation not given—order binding down person preceded against is illegal. Balaram Sarkar Vs Nabakanta(196D13 DLR 243; PLD 1962 Dacca 83.
—When petition is filed before a District Magistrate for initiation of proceeding under section 107 the District Magistrate may either draw up proceedings himself recording the grounds of his satisfaction and thereafter transfer them to some subordinate Court for disposal or he can send the petition for disposal to some other subordinate Magistrate for that Magistrate to decide whether in his opinion proceeding under section 107 should be drawn up. Crown Vs. Mashibur Rahman (1954) 6 DLR 79.
—Execution of a bond u/s 107 is a separate proceeding u/s 145—Procedure to be followed in case of proceeding u/s 107 whereby provision under sections 112, 108, 109 & 110 shall have to be complied with. Sultan Ahmed VsJIaji S. Ahmed (1980) 32 DLR 352:
—If on perusal of the petition and hearing Jhe parties the Magistrate is satisfied that there is apprehension of breach of the peace but he does .not slate in writing the ground of his satisfaction then the order though defective would not be without jurisdiction. Mojibor Rahman Mullick Vs. Tobarak Majhi, (1972) 24 DLR 48.
—An order of seizing arms under section 25 of the Arms Act can validly be made in a proceeding under section 107 Cr. P. G. Mojibor Rahman Mullick Vs. Tobarak Majhi (1972) 24 DLR 48.
—Order for security—Finding that there is danger of breach of peace is prerequisite for the order. Ijaz All Shah Vs. Iqbal Begum PLD 1963 Peshwar 175.
S. 107—Order under section 107, when may be passed—Duty of the Magistrate laid down. Ijaz AH Shah Vs. Iqbal Begum. PLD 1963 Peshwar 175.
—Serious allegations—Sufficient reason for Magistrate to proceed under the section. Abdul Rahman Vs. State PLD 1965 Karachi 292.
Ss. 107, 112, 117 & 118.—In matters arising out of S. 107, even in case of emergency, provision of S. 112 must be complied with and as provided in S. 117 Magistrate shall ascertain whether execution of bond is necessary. In case of emergency further provision has been made for execution of interim-bond. Sultan Ahmed Vs. //a/7 S. Ahmed (1982) 34 DLR (AD) 354.
Ss. 107 & 145—Proceeding in respect of the disputed land while pending u/s 145 Cr.P.C. in the Magistrate Court, the first party filed an application u/s 107 of the Cr.P.G. and the Magistrate thereupon directed the 2nd party to execute a bond of 2000/- for good behaviour for one year. Thus two fold order was passed against the 2nd party, one u/s 145, not to enter the disputed Land and another to execute bond u/s 107—proceedings u/ss.
107 and 145 are different and independent of each other—The Magistrate, however is competent to act u/s 107 if he is satisfied that any party to the proceeding u/s 145 is likely to commit breach of peace and on such satisfaction may'bind down the person who is likely to commit breach of peace. Sultan Ahmed Vs. Ilaji S. Ahmed (1982) 34 DLR (AD) 352.
Ss.107, 112, 117—Nature of proceedings—Judicial—Evidence must be taken and a complete enquiry held before passing order. Rajendra Mohan 'Das Vs. Serajul lioque (1961) 13 DLR 609;PLD 1961 Dacca -122.
Ss. 107, 112, 117—Proceedings under 107 referred to police for report—Report of police favourable'to opponents—Magistrate may ignore report and issue Summons. PLD 1965 Karachi 292.
—S. 109 —Court of Sessions precluded from taking cognizance of an offence as a court of Original jurisdiction. So far as the Court of Session is concerned, proceeding must initiate before a Magistrate as provided in section 190 Cr. P. C. A Magistrate taking cognizance of an offence issues process under section 204 thereof. Section 205C provides, inter alia,that when in a case instituted on, a police report or otherwise the accused appears or is brought before the magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall send the case to the Court Of Session. The Court of Session is precluded from taking congizancc of an offence as a court of original jurisdiction unless the accused has been sent to it by a Magistrate duly empowered in that behalf. Abdur Razzaque Vs. State (1983) 35 DLR 103.
Ss. 109, 112, 114, 115, 117, 118—
Mandatory provisions to be followed when a'ction under section 109 Cr.P.Codc deemed necessary. If a Magistrate deems it necessary to take action against a person under section 109, C'r.P.Code, he should make an order under the provision of section 112 of the Code and, in so doing it is a mandatory provision of law that the substance of the information.received be embodied therein, The failure to do so is an irregularity which is not curable by virtue of section 537, Cr.P.Codc. A copy of the order as required by section 115,Cr.P.C., should then be delivered to him when he is served with a summons under section 114, Cr.P.C. Even if the person concerned expresses his willingness to furnish security, a proper inquiry, on the analogy of the procedure to be adopted in a warrant case must be held under provision of section 117, Cr.P.C. and finally if, as a result of such inquiry, the Magistrate is satisfied that security should be furnished he can pass such order as he thinks fit under the provision of section 118, CrP.Code.
The act of a person who tried to run away and who gave a false name to the police when questioned did not justify the inference that he was unable to give a satisfactory account of himself. (1953) 5 DLR (WP) 109 (112 J-h col).
. S, 109(a)—applies only where concealment is continuous—Does not apply where concealment is momentary. Abdul Aziz Vs. Slate (1961) 13 DLR 387;PLD 1962 Dacca 611;PLR 1961(1) Dacca 1048.
—S. 109(b)—"Satisfactory account of himself'-r-Mcaning of—Docs not mean momentary behavior—whole course of conduct is to be explained. Stale Vs. Abdul Hakim 16 DLR (WP) 204;PLD 1964 Karachi 384.
—S. 110 : Reasonable proof necessary before security is demanded.
The manner in which a particular person might have behaved may give rise to suspicion in the minds of the police officials who arrested him: but suspicion alone is not sufficient for any Court to demand that such a person should furnish security. Reasonable proof is essential before security is demanded and no laxity in the procedure for dealing with such cases can be countenanced. (1953) 5 DLR (WP) 109 (112 left-h.col).
—Cross Examination of witnesses not allowed in proceedings—final order passed by Magistrate is illegal. Hakeem Vs. State PLD 1963 Karachi 63.
Joint Trial—It can not be laid down as a general rule that whenever two persons are tried together u/s 110 Cr. P. C. all the evidences should be equally applicable to both of them where there is ample evidence to show that petitioners were confederate and partners in their misdeeds—a joint trial was permissible. Sk Kaloo Vs Stale 9 DLR 253.
—The word "habit", explained—The
word 'habit' implies a tendency or capacity resulting from the repetition of the same act. It means a persistence in doing an act, a fact which is capable of proof by adducing evidence of the commission of a number of similar acts. Siddiqullah Vs. The State(1970)22DLR491.
—Previous conviction— Order for security-There is no bar in initiating a proceeding under section 110 of the Code and such a bar cannot be spelt out simply because the same person has been previously acquitted or discharged of any substantive offence in a case. A previous conviction is not necessary for an order of security being passed in proceedings under section 110 Cr. P. G. Siddiqullah Vs. The State (1970)22 DLR 491.
—Where on account of arjscncc of accusation a joint trial of several persons under section 110 is held illegal, it is certainly open to a Magistrate to 'hold enquiry, if so advised, against each of the accused. Hafez Vs. Crown 2 PCR 129
—Proof by evidence of general repute.
A charge under section 110(a) or (b) Cr. P.C, may be proved by adducing evidence of general repute. Positive evidence as to the actual commission of an offence is not necessary. Instances of specific crimes are admissible in evidence although they are not supported by evidence of such amount and value as would secure a conviction for a substantive offence. Siddiqullah Vs. The State (1970) 22 DLR 491.
—There is nothing to bar proceedings under section 110 being launched against a member of a criminal tribe. Kaloo Zamadar Vs. Crown (1954)6 DLR 375.
-Ss. 110-112
—Applicability of the section 110 when an accused is acquitted of the substantive offence. Proceedings under section 110 is maintainable even when the accused is discharged or acquitted of substantive offence.
But in such cases it is always necessary to scrutinize the evidence with great care and come to the conclusion whether there is sufficient evidence to warrant an order demanding security and it should be made clear that the proceedings under section 100 are not to be taken as a means of punishing an individual in an indirect way. Ledu Vs. Crown( 1955)7 DLR 98.
—Contemplated proceedings—arrest under section 55.
A contemplated proceeding under section 110 against a person is no bar against his arrest under section 55 of the Code by police without warrant if he is liable to arrest under the provisions of that section. Navas Vs. Crown 7 DLR 361.
—Formal charge not necessary-substance of the offence to be read out. Framing a formal charge in a proceeding under section 110 is not practicable but, in view of the provisions contained in section 112 of the Code, reading out to the accused the substance of the accusation is almost equivalent to the framing of formal charge. Jagar Mamud alias Akkel AH Vs. Stale(1956)8 DLR 301(403).
Ss-110, 112 & 118—Simultaneous order to execute a bond and, in default, to suffer imprisonment illegal—such order, however docs not render the whole proceeding illegal. Jale Vs. Crown (1956) 8 DLR 1.
Ss-110, 537—Proceedings transferred to Magistrate not empowered to deal with matter— proceedings illegal—final order u/s 118 void. Abdur Rahman Vs;State (1962) 14 DLR 21i;PLD 1963 Dacca 372, PLD1963 Dacca 826 (Repeated Case).
S-112:— Simultaneous order to execute a bond and in default to suffer imprisonment, illegal. Such order, however, docs not render the whole proceeding illegal. Jhale Khan Vs. Crown (1956) 8 DLR 7 .
—Magistrate may pass an ad interim order in emergent circumstances at any stage after the order u/s. 112 is passcd-Pcnding the conclusion of enquiry Magistrate may take action u/s. 117(3) before appearance of the 2nd party. Abul Hussain Vs. Aminur Rahman (1968) 20 DLR 759.
—Substance of information to be embodied.
If a Magistrate takes action against a person under section 109 Cr.P.Code, he should make an order under the provisions of section 112 of the Code. In so doing, it is mandatory that the substance of the information received be embodied therein. The failure to do so is an-irregularity which is not curable by virtue of section 537, Cr. P.Code. (1953)5 DLR (WP) 109 (112).
—Interim bond can be asked for— Party must be before the Court—Pending completion of the enquiry"-explained. The Sessions Judge is of the view that an interim bond can be asked for only after an order in terms of section 112 Cr. P. C. has been made. In this connection he has referred to 17 DLR 38 (Abdul Rashid Vs. Muklar Khan and others). This view finds support also from the opening words of subsection^) of section 117. Again, sub-scction(l) of section 117 provides that the Magistrate shall proceed to inquire into the truth of the information when the proceeding is read over to the person present in court or when any person appears or is brought before Magistrate and unless a person against whom the proceeding is drawn up is before the court an inquiry cannot be said to have commenced. The .words "pending completion of the enquiry" can only mean that the inquiry has to commence before an interim bond can be asked for under sub-scction(3) of section 117 Cr.P.C. Sheraj Mia Vs. Siddiqur Rahman{ 1968)20 DLR 711.
Ss-112 and 113—Magistrate's failure to comply with the imperatives in sections 112 and 113 render the proceedings illegal.
—Ss. 112-117
The order requiring respondents to execute a bond under section 109, Cr. P. C., cannot, therefore, be maintained. Crown Vs. Sultan 2 PLD(BJ)83.
Ss-112, 107—Conditions that sureties must be holding certain amount of land and must be resident near accused—whether onerous and illegal. State Vs. Ghulam Husyain PLD 1963 Karachi 679,
Ssll2, 107, 117 :— Nature of proceedings Judicial—Evidence—Evidence must be taken and a complete enquiry held before passing order. Rahendra Mohan Das Vs. Serajul Hague PLD 1961 Dacca 122
-r—Order to give surely for 12 months—persons kept in custody pending proceeding for 16 to 17 months—order quashed. State Vs. Hyder PLD 1963 Karachi 673;PLR 1963 (1) W.P - 285 (DB).
—Person proceeded against must be informed about information against them—object of section. Abdul Karim Vs. Slate PLD 1963 Peshwar.233
Ss-114, 115, 117, 118—Requirement of the Section to be complied with. If a Magistrate takes action against a person under section 109 Cr. P. Code, he should make an order under the provisions of section 112 of the Codc,andin so doing, it is mandatory that the substance of the information received be embodied therein. The failure to do so is an irregularity which is not curable by virtue of section 537, Cr. P. Code. A copy of the order as required by section 115, Cr.P.C. should then be delivered to him (i.e., the person concerned) when he is served with a summons under section 114,Cr. P. C. Even if the person concerned expresses his willingness to furnish security, a proper inquiry, on the analogy of the procedure to be adopted in a warrant case must be held under provision Of section 117 Cr. P..C., and finally if, as a result of such inquiry, the Magistrate is satisfied that security should be furnished he can pass such order as he thinks fit under the provision of section 118, Cr.P. Code. 5 DLR(WP>) 109 (112, L-h Col.).
S-117—Contemplates that the order under sub-sec.(3) shall be passed after the order u/s. 112 has been made and read out or explained to the defendant u/s. 113 Cr. P. Code. Comrade Mokbool Vs. Azad J &K Govt.(1955) 7 DLR(WP)44.
8-117(1):— When an order under section 112 of the Code is already known to the persons concerned, is in compliance with the provisions of sec. 113 or 114, there is perhaps no necessity of reading or explaining the said order to, them once again under sub-section (1) of section 117. Abul llossain Vs. Aminur Rahman(1968) 20 DLR 759.
S. 117(2)—Warrant case procedure. The application of the procedure of warrant trials to 'good behaviour' cases should be as nearly as practicable—Clear departure, not proper—Cross-examination of P.Ws. should generally wait till next hearing. Direction for immediate cross-examination, without recording reason, causes prejudice. Jagar Mamud Alias Akkel All Vs. State (1956)8 DLR 401.
S. 117(3)—Section 117 contemplates that the order under sub-sec.(3) shall be passed after the order under section 112 has been made and read out or explained to the defendant under section 113, Cr. P. C. Comrade Makbool Vs. Azad J & K. Govl.(1955)7 DLR(WP)44.
—Magistrate may pass an ad-interim order in emergent circumstances at any stage after the order under section 112 is passed—Pending the completion of enquiry Magistrate may take action under section 117(3) before the appearance of the 2nd party. Abul llossain Vs. Aminur Rahman(Dac)(1968) 20 DLR 759.
—A Magistrate exercising power under the subsection may, for reason to be recorded in writing, pass an ad-interim order directing to execute a bond, to meet the emergencies but such order should not be lightly made without carefully considering the situation. Abul llossain Vs. Aminur Rahman( 1968)20 DLR 759.
-Ss. 117-118
—Interim bond when can be asked— Party must be before the Court,"Pending completion of the enquiry" explained. The Sessions Judge is of the view that an interim bond can be asked for only after an order in terms of section 112 Cr. P. C. and has referred to" 17 DLR 38(Abdul Rashid Vs. Muktar Khan and. others). This view finds support also from the opening words of sub-section(3) of section 117. Again, sub-section(l) of section 117 provides that the Magistrate shall proceed to inquire into the truth of the information when the proceeding is read over to the person present in court or when any person appears or is brought before Magistrate and unless a person against whom the proceeding is drawn up is before the court an inquiry cannot be said to have commenced. The words "pending completion of the enquiry" can only mean that the inquiry has to commence before an interim bond can be asked for under sub-section (3)'of section 117 Cr. P. C. Sheraj Mia Vs. Siddiqur Rahman (1968) 20 DLR 711.
—Surety—May be required till completion of inquiry—security demanded for two years—illegal. Gul Hussain Vs. State (1961) 13 DLR(WP) 66; PLD1961 (W.P) Karachi 698
—An application under section 117(3) must be dealt with care and prudence. They arc urgent orders arising out of an emergency and can only be justified in the exceptional circumstances of an emergency. Comrade Makbool Vs. Azad J & K Govt. (1955) 7 DLR (WP) 44.
Sentence—Separate sentence for rioting and hurt—not proper. 7957 PLD (Kar) 801.
Ss. 117(3), 118—Immediate measurers u/s 117(3)—May be taken only after inquiry as to necessity" for immediate measure. State Vs. Hyder PLD 1963 (WP) Karachi 673.
117(3):— Inquiry before passing order—Merc statement of complainant not enough—Examination of independent witnesses necessary. Bahadur Vs. Slate PLD 1964 (WP) Karachi 85.
Ss. 117, 112, 107—Nature of proceedings-Judicial-Evidcncc must be taken and complete enquiry held before passing order. Rahendra Mohan Das Vs. S. lioque PLD 1961 Dacca 122 (1961) 13'DLR 609.
S. 117(5)—Where two or more persons have been associated together in a matter under enquiry under section 117(5) they may be dealt with in the same or separate enquiry. A joint enquiry against many persons would foe fully justified if and when these persons have joined together as habitual offenders or thieves. 2 PCR 129.
—The language used in section 117(5) makes it very clear that the Magistrate has to decide before the enquiry commences whether certain persons would be dealt with in the same or separate enquiry. Mofiz Vs. Crown 2 PCR 129.
S. 118—Simultaneous default to execute bond or order to suffer imprisonment not bad when passed in conformity with the provisions of sections 118 and 123(1) of the Code.
But if the order is passed without giving a reasonable time to the petitioner to execute bond, also the order docs not give an opportunity to him to be released from custody, the moment he furnishes the security, such an order will be highly improper and bad in law. Siddiqullah Vs. The State(1970)22 DLR 491
—Reasonable time to furnish security. Magistrate must give a reasonable time to the accused to furnish security and if he docs not do so by his first order directing him to furnish security he may by a subsequent order give him time to furnish security. Amjad All Vs. Crown (1955) 7 DLR 98(102).
—Order under section 118 reversed on appeal and retrial directed.
The appellate Court in disposing of an appeal under section 423, Cr. P. Code, against an order passed under section 118, Cr.P.Code, set aside the trial Magistrate's order on the ground that the evidence was not properly recorded by the Magistrate and sent back the case to another Magistrate to —Ss. 118-123
proceed with the trial in accordance with the directions given by the appellate Court.
Held: The trial Court's order being reversed in appeal the appellate Court should have passed an order consequential or incidental to the order setting aside the trial Court's order. Muradally Vs. Crown 1 PCR 45.
Ss. 118 & 123: Simultaneous orders to execute bond or suffer imprisonment in default, illegal. Amjad All Vs. Crown(1955)7 DLR 98(101).
S. 118—Amount of security—Must be within means of the person proceeded against. Muhammad Sarwar Vs. State 17 DLR (W.P)50. PLD 1965 (W.P) Peshwar 14.
—Ss. 118, 110—Order of execution of bond and imprisonment for default—two orders can not be simultaneous. 14 DLR 211:PLD 1963 Dacca 826.
Ss. 118, 107, 110—Object of taking security—Amount of security should not be excessive—How discretion of Magistrate may be exercised. Muhammad Sarwar Vs. Slate. PLD 1965 (W.P) Peshwar 14; 17 DLR (W.P) 50.
S. 118—Onerous condition attached to order to give Security—Illegal—Magistrate should himself determine whether he would take surety bond from a person or not. Muhammad Sarwar Vs. State. PLD 1965 (W.P) Peshwar 14.17 DLR (W.P) 50.
Ss. 118, 110—Person proceeded against consenting to give security—Not sufficient for order to give security—Order must be based on legal evidence and legal, finding. Abdul Karim Vs. Stale PLD 1963 (WP) Peshawar 233.
S. 119—Complainant (in respect of a proceeding under section 107 Cr.P. Code) being found absent on call, Magistrate passed an order of discharge under section 119. Immediately thereafter the complainant appeared and filed an application for revival of the case and on that the Magistrate revived the case.
Held : There was in Law no discharge and the proceedings u/s. 107 to be treated as alive—There was no question of revival in the case. Badal Chandra Chose Vs. Mojibur Rahman (1974) 26 DLR 373.
—Applicant absent, order of discharge may be passed by Magistrate—Order of Magistrate demanding security from applicant for appearance is ultra vires. Msi. Zaitoon Vs. Samundar Khan 7 PLD(Bal.)19.
S. 120(1)—Imprisonment in default of security. Person undergoing sentence of imprisonment ordered to furnish security and in default to undergo imprisonment—Imprisonment in default of security to commence on expiration of first sentence. Crown Vs. Rahim Baksha 2 PLD(BJ) 63.
S. 122(1) : Proviso—surety—Rejected without enquiry—Illegal. Gul Hussain Vs. Stale 13 DLR (W.P) 66'PLD 1961 (W.P) Karachi 698.
S. 123 : Reasonable lime to furnish security must be given. Without affording lime to execute the bond the Magistrate cannot in exercise of the power under section 123 commil Ihc person to prison. Amjad All Vs. Crown (1955) 7 DLR 98.
—Simultaneous order to execute bond or suffer imprisonment, illegal. Amjad All Vs. Crown 7 DLR 98.
—Simultaneous order to execute bond or suffer imprisonment, illegal, Such order, however, docs not render the whole proceeding illegal. Jhale Khan Vs. Crown (1956) 8 DLR 7.
S. 123 — F.C.R—Section docs nol apply to proceedings under F.C.R. A jab Khan Vs. State PLD 1963 (W.P.) Peshwar 224 (DB).
S. 123(1)—Simultaneous default order to execute bond or to suffer imprisonment not bad when passed in conformity with the provisions of sections 118 and 123(1).
But if the order is passed withoul giving a reasonable time to the petitioner to execute the bond -Ss. 125-133
and also the order does not give an opportunity to him to be released from custody, the moment he furnishes the security, this order will be bad in law. Siddiqullah Vs. Slate (1970) 22 DLR 491.
Ss. 125, 156A : Order cancelling bond for good behaviour—judicial order—High Court may interfere with the order. Imam All Vs. District Magistrate PLD 1965 (W.P.) Lahore 3/8.
S. 127: Deputy Director of the Bureau of Anti-Corruption Department though a P.S.P. Officer not a "Police Officer" within the meaning of section 127 Cr.P.C., and as such cannot disperse an unlawful assembly. A.K.M. Shajahan Vs. State (1969) 21 DLR 307.
—S. 133 : Under section 133 it is for the Magistrate before whom an information lodged to consider if any obstruction is to be removed from a public path way. Where the Magistrate, on the materials before him, did not think fit to proceed under section 133 CrP.Code, it was not to open to the Sessions Judge to say that the Magistrate on the consideration of the materials was under obligation to proceed under that section. Nizamuddin Vs. Akbar All Sheikh (1956) 8 DLR 233.
—Accepting verdict in part—Having regard to the provision of sections 133—139 (which deals with public nuisance) it is not open to a Magistrate to accept the verdict of the jury in part. Abdul Jalil Vs. Kutubuddin, (1957) 9 DLR 172.
—Provision of the Section arc to be invoked on the occasion of grave emergency or imminent danger. If a public nuisance is allowed to stand for a long time the section will not be applicable, llafizur Rahman Vs. Abdul Kader Talukder (1956) 8 DLR 298.
—'Public nuisance' is a nuisance to the public or to the people in general who dwell or occupy property in the vicinity or persons who may have occasion to use any public right.
A notice made in the carrying on of a lawful trade under a licence, if injurious to the physical comfort of the community is a public nuisance and a Magistrate has jurisdiction to proceed under section 133 Cr.P.Code for the abatement of the nuisance. S. R. Mahmud Vs. Jahangir (1969) 21 DLR 31.
—Section 133 is attracted in the case of obstruction raised which is of recent origin but not an old one. Mosharraf Hossain Vs. Hajee Nurul Islam (1969) 21 DLR 557.
—Magistrate commits an illegality if a person appears before him upon an order passed u/s. 133(1) and denies the existence of a public path, if without an enquiry envisaged u/s. 139 he makes the order absolute. Mosharaf Ilossain Vs. Hajee Nurul Islam (1969) 21 DLR 557.
—Tree forming common boundary.
A tree on the bank of the tank which forms the common boundary of the petitioner's tank and the opposite parties house docs not fall within the definition of public nuisance, nor can it be said thai if it falls it is likely to cause injury to persons, living or carrying on business in the neighbourhood or passing by, merely because if it does fall, it is likely to cause damage to the opposite party's boundary wall and cookshed. Azizur Rahman Vs. Manik Uddin, 1 PLD 43.
—Reference to arbitration if competent:
Under Chapter X of the Criminal Procedure a conditional order under section 133 can only be made absolute according to sections 136, 137 and 132 of the Code. There is no provision in the chapter for any reference of a public nuisance to arbitration and no provisions for making of a conditional order absolute as a result of finding of the arbitration. Md. Mohasin All Vs. Abdur Rashid Mrida 54, CWN (DR 2) 133.
—Direction to party to remove obstruction without first requiring them to put in written statement of their respective claims-illegal. Mahabbal AH Sarkar Vs. Jahur All (1957) 9 DLR 257.
S.133 : Local inspection—Not evidence— permitted only for proper appreciation of evidence—
—Ss. 133-139
order passed on only local inspection—Illegal. Bazal Ahmad Vs. Nur Muhammad PLD 1963 Dacca 852; 14 DLR 741.
S. 133 : Final orders cannot be passed without giving an opportunity to the other party. Under section 133 of the Code of Criminal Procedure the Magistrate is not entitled to pass a final order without making necessary enquiry as provided under the Code and giving an opportunity to the other party to show cause. State Vs. Secr&tary, North Bengal Transport. (1974) 26 DLR 9.
S. 133 : Application under the section not a complaint—can not be referred to police under S. 202. Bahadur Vs. Mudhai PLD 1963 Lahore 269.
—Application under the section can not be referred to arbitration. Bahadur Vs. Mudhai PLD 1963 Lahore 269.
Ss. 133 & 139A—Magistrate making absolute an order u/s. 137(3) Cr.P.C. without first passing a conditional order u/s. 133 and without following procedure laid down in S. 133 and 139A mandatory. Hayat Gul Vs. Gul Zamir (1966) 18 DLR (WP) 1.
Ss. 133, 137—Allegation of nuisance denied by opposite parly—proceedings can not be dropped—Evidence must be recorded by Magistrate. Muhammad Afzaluddin Biswas Vs. Dwijendra Nalh Das (1965) 17 DLR 3'17;PLD 1965 Dacca 366.
Ss. 133, 136, 137, 139—Conditional order not made under the secdon^Absolute order can not be passed. Bahadur Vs. Mudhai PLD 1963 Lahore 269.
Ss. 133,139A : Title, question of—Not to be decided in criminal proceedings. Navfab Vs. State PLD 1963 (W.P.) Peshwar 236.
S. 133 & S. 192(1)—'Case1 in S.192(1) includes proceedings under section 133.
The word 'case' in section 192(1) of the Cr.P.Code is wide enough to include proceedings under section 133 and consequently a Magistrate who drew up proceedings under section 133 is competent to transfer a case to another Magistrate under section 192(1) of the Code. Ilaji KeramatM Pandit Vs. Sadat AH (1955) 7 DLR 351.
S. 137 : Allegations of nuisance denied by party—Magistrate can not drop proceedings without recording evidence. Muhammad Afzal uddin Biswas Vs. Dwijendra Nalh Das 17DLR 317.
S. 137(I)(2)(3)—Order under section 137 (2) (3) must follow evidence taken under section 137(1)-Ordcr to be supported on proper materials. Ramzan Khan Vs. Md. Madan Khan (1969) 21 DLR 101.
S. 139—Having regard to the provisions of Sections 133-139 Cr.P.C. it is not open to a Magistrate to accept the verdict of a jury in part. Abdul Mil Vs. Kutubuddin (1957)9 DLR 172.
S. 139A—Magistrate commits an illegality if a person appears before him upon an order passed under section 133(1) and denies the existence of the public path, if without an enquiry envisaged under section 139A he makes the order absolute. Mosharraf Uossain Vs. Hajee N. Islam(1969) 21 DLR 557.
S. 139A—Local inspection—Enquiry held under section 139A is a judicial enquiry and a local inspection held under section 539B cannot take the place of an enquiry under section .139A. Mosharraf Uossain Vs. Hajee N. Islam (1969) 21 DLR 557.
—Magistrate must stay proceedings if there is reliable evidence in support of denial of public right. 8 PLD-(Loh.) 1-7-1.
—S. 139A—Magistrate making absolute an order u/s. 137(3) of the Cr.P.Code, without first passing a conditional order u/s. 133 and without following procedure laid down in S.139A he acts against the mandatory provisions of law. Hayat Gul Vs. Gul. Zamir(1966) 18 DLR (WP) I
-Ss. 139-144
S. 139A—Question as to public right not put to person—person denying such right and producing evidence—Irregularity curable. Dhanne Sheikh Vs. Rahim Baksha PLD 1964 Dacca 236; PLR 1963 Dacca 496.
S. 139A—Reliable evidence—Meaning of—Does not mean definite evidence of title. Nawab Vs. State PLD 1963 (WP) Peshwar236.]
S. 139(A)—Summary proceedings—Order must be evidence. Bazal Ahmed Vs. Nur Muhammad'J4 DLR 741 PLD 1963 Dacca 852.
S. 139(1) & (2)—Inquiry—Magistrate may take evidence of both the parties. 8 PLD (Lah.) 171.
Ss. 139A, 142(1)—Evidence under S. 139A—Recording can not be made contingent on compliance with injunction u/s. 142. Arabullah Vs. Abdul Wahid 16 DLR SC. 320; PLD 1964 SC 391.
S. 139 (a)(l), 133—"Inquiry into the matter"— Meaning of—dropping of proceedings without taking any evidence—Illegal. Bazal Ahmed Vs. Nur Mohd; 14 DLR 741 PLD 1963 Dacca 852.
S. 139A (1)(2)—Inquiry—Magistrate may take evidence of both parties. Magistrate must stay proceedings if there is reliable evidence in support of denial of public right. 8 PLD (Lahore) 171.
Ss. 142(1), 133—Mandatory injunction under S.142 (I)-When may be issued—No bar to exercise of power after recall of injunction. Arabullah Vs. Abdul Wahid'16 DLR SC. 320;PLD 1964 SC. 391.
S. 144—Conditions necessary for starting proceedings.
Necessary requisite is to see whether there is an imminent danger of breach of the peace. The mere statement by the Magistrate that a serious breach of the peace may take place and immediate prevention and speedy remedy are necessary is not sufficient to give him jurisdiction, if the facts set out by him depend mainly on the reports of the Police Officers. (1953) 5 DLR 76.
—Section 144 contemplates suppression of private rights for public tranquility. But such suppression must be temporary and ought not to be made unless considered absolutely necessary and except in emergency. Mueez Ali llatem. Alt Vs. State (1967) 19 DLR (WP) 15.
—Curfew orders, violation of.
Curfew can lawfully be imposed under section 144 when apprehension of breach of peace, loss of human life, etc, apprehended—Civil authority lawfully can call in aid in exercise of its police powers, armed forces for maintenance of peace and saving of citizen's life, etc. —Shooting of violators of curfew orders cannot be held unjustifiable when circumstances demand. Farid Ahmed Vs. Prov. of E.P.(1969) 21 DLR 225.
—Section 144 cannot remain in force indefinitely and, when the order has spent its force, the proceedings under section 188, Pakistan Penal Code, for disobedience of the order can be quashed. (1953)5 DLR 76.
—Where a Sub-divisional Magistrate drew up proceedings under section 144 and issued a conditional order of injunction restraining both the parties from entering upon the proceedings land and asked them to file written statements and show cause before him by a certain dale and after written statements had been filed by both the parties, transferred the case to a subordinate Magistrate for disposal who under S.144(4) rescinded the order passed by the Sub-divisional Magistrate.
Held : The Sub-divisional Magistrates order upon the parlies to file written statements was illegal. Sreepali Biswas Vs. Rajendra Nalh(1954)6 DLR 427.
—An order under section 144 can be only passed by such Magistrates as are specifically mentioned in the section and, therefore, the above case cannol be transferred to a subordinate Magistrate in the manner in which the Sub-divisional Magistrate Iransfcrred il. Sreepati Biswas Vs. Rajendra Nalh (1954) 6 DLR 427.
—Under scclion 144(4), the power of rescinding an order under sec.144 is given only lo a Magistrate —S. 144.
mentioned in sub-section (4). A subordinate Magistrate, therefore, possesses no jurisdiction to rescind or modify an order under Sec. 144 passed by the Sub-divisional Magistrate. Sreepathi Biswas Vs. RajendraNath (1954) 6 DLR 427.
—Possession of the land : The complainant, having been debarred to enter on the disputed land and exercise any aet of possession by a prohibitory order under See^ 144, eannot validly lay a charge of theft in respect of anything grown on that land during the time the order under Sec. 144 was in force inasmuch as the complainant cannot say he was then in possession of the land. Mafiz AH Vs. RajabAli (1952) 4 DLR 490.
—No charge would lie under section 379, Pakistan Penal Code, for taking paddy out of the possession of the complainant when he was debarred from entering upon the disputed land and exercising any act of possession in respect thereof by an order under section 144, served on him before the date of occurrence. Ishaque Mia Vs. Abudl Malek (1958) 10 DLR 366
;v-^An order .vacating an earlier order under section 144 must be served personally on the persons to be.affectcd by it. Ishaque Mia Vs. Abdul Malek (1958) 10 DLR 366.
—'Order under S.144 restraining the 2nd party from going upon the disputed land was made on 11.12.67. Subsequently the Magistrate converted proceedings started under S.I 14 to those under S.145 on 10.2.68 that is, within 2 months' lime counted from 11.12.67 and therefore the conversion having taken place within 2 months from 11.12.67 it was valid in law. Enat Ali Akanda Vs. Meser Ali Sheikh (1974) 26 DLR 145.
—Scope and purposes of the prohibitory orders under the section. .
Section 144 Cr.P.C. by its very terms is limited to an urgent case of apprehended danger and the order to be passed under it must be of limited duration. Powers granted under the said section being in derogation of the ordinary civil rights of the citizens, the provisions of the said section should be strictly construed and the power shall be sparingly used in cases of emergency only when there is no alternative remedy for combating the apprehended danger. -OaliAhad Vs. Govt. of People's Republic of Bangladesh. (1974) 26 DLR 376.
Successive or repetition of the same orders, held illegal.
In most of the judicial decisions u/s. 144 the making of successive orders were held to be unjustified and liable to be set aside and in those cases where the same orders were practically repeated or the second order was calculated to evade the effect of clause (6) of the section, such orders were declared to have been made without jurisdiction. Oali Ahad Vs. Govt. of People's Republic of Bangladesh. (1974) 26 DLR 376.
—Orders to operate beyond 2 months are without jurisdiction.
The Magistrate can not pass an order which has the effect of extending the period of operation of such an order beyond two months and the order which purports to or may be deemed to extend such operation should undoubtedly be regarded as being made without jurisdiction. Oali Ahad Vs. Govt. of People's Republic of Bangladesh. (1974) 26 DLR 376.
—In cases of meeting new developments after the expiry of the first order, a second order may justifiably be made. Oali- Ahad Vs. Govt. of People's Republic of Bangladesh. (1974) 26 DLR 376.
—Magistrate acting under section 144 acts judicially and his order should indicate some kind of nexus between prohibited acts and apprehended danger. Oali Ahad Vs. Govt. of People's Republic of Bangladesh. (1974) 26 DLR 376.
—The .concept of reasonableness in constitutional provisions for harmonising individual interests with collective interest. Restrictions contemplated in sec. 144 must conform to the standard of reasonableness in article 37, of which the guideline is the interests of public order. Oali Ahad Vs. Govt. of People's Republic of Bangladesh. (1974) 26 DLR 3-76.
—Chapters VIII, X, XI and XII, Cr. P. Code. Jurisdiction conferred by Chapter XI (s.144) is to meet cases of emergency-:—Chapters VIII, X and XII deal with matters of more or less permanent nature. Normal expedient which may be more or less permanent in nature for prevention of any disturbance of the public peace and tranquility or public nuisance has been provided in Chapters VIII, X and XII. Chapter IX embodies provisions for taking measures for disposal of any unlawful assembly or any assembly of five or more persons likely to cause disturbance of the public peace. It is the urgency of a case which invests a Magistrate with jurisdiction to exercise powers under Chapter XI. Oali Ahad Vs. Govt. of People's Republic of Bangladesh. (1974) 26DLR 376.
—Prohibitory orders passed by the Magistrate (in the present case banning holding of public meetings). Magistrate in his order must state material facts for exercise of his power under the section. The Magistrate charged with the duty of exercising power is required to state the material facts on the basis of which the necessary formation of the opinion has been made, and it is for the Court to see whether the preventive action curbing the fundamental right is reasonable in the interest of the public order. Oali Ahad Vs. Govt. of People's Republic of Bangladesh. (1974) 26 DLR 376.
—Prohibitory order under the provision—made immediately after the expiry of a previous similar order—If illegal—violation of such order is punishable u/s 188, Penal Code. Azhar Khan Vs. State 12 DLR 8381PLD 1961 Dacca 864.
—Prohibitory order—passed immediately on expiry of previous order—If second order is illegal. Azhar Khan Vs. State 12 DLR 838,'PLD 1961 Dacca 864.
—Life of the proceedings u/s. 144 having terminated after the expiry of .two months, no fresh proceedings under section 145 could thereafter be started, as proceedings under section 144 being irrevocably dead, they could not either be revived or converted into anything else. Rebati Mohan De Vs. Ansar Ali, (1953) 5 DLR 162-D.
—Facts and reasons must be stated for order under the sections-No reason stated—order is illegal. Muhammed Afzal Khan Vs. State. PLD 1963 (WP)Peshwar 238.
Ss. 144, 439—Illegal order u/s. 144—Parties likely to suffer from—effect of order even after it ceases to be in force—order may be revised. Sultan Ahmed Vs. Ahmad AH (1953) 15 DLR 702;PLD
1964 Dacca 520.
S. 144—Orders u/s. 144 were clearly intended to be only temporary in their operation, and there is no lack of authority on the point that any attempt to give such an order permanent or semipermanent effect is illegal. Akhtar Mahmood Vs. DM. Lahore PLD 1964 (W.P.) Lahore 93.
Ss. 144 and 145—Dispute over possession of land—Proceedings to be drawn up should be under sec. 145.
As .the dispute was relating to land the learned Magistrate ought to have converted the proceedings from one u/s. 144 Cr.P.Code to one under section 145 Cr. P. C. The impugned order therefore has been passed without jurisdiction. Though the order is a dead order, it may be prejudicial to the petitioner regarding his claim of alleged possession, and as such, it is liable to be and is hereby set aside. Maram Ali Vs. The State(1978) 30 DLR 164.
—Order u/s. 144 still in force—If proceedings u/s. 144 may be converted into proceedings u/s. 145. Golam Ahmed Vs. Samser Ali PLD 1961 Dacca 499: PLR1960 Dacca 849.
—An order under section 144 when to be converted to one under section 145 Cr.P.Code. In a dispute over certain land the Magistrate drew up proceedings under section 144 Cr. P. Code on a police report on 27.9.68 and before expiry of two months passed the following order on 26.11.68.
"Both parties are present. The order is made absolute".
—Ss. 144-145
Held: The Magistrate should have converted the earlier proceedings drawn up under section 144 Cr. P. Code to one under section 145 Cr. P. Code, if he was satisfied that there was further likelihood of breach of peace over the land in dispute. Joynal Abddin Dhali Vs. Mabullah Malbar. (1970) 22 DLR 87.
—Order under S. 144 restraining the 2nd party from going upon the disputed land was made on 11.12.67. Subsequently the Magistrate converted proceedings started under s.144 to those under S.I45 on 10.2.68 that is, within 2 months' time counted from 11.12.67 and therefore the conversion having taken place within 2 months from 11.12.67 it was valid in law. Enat All Akanda Vs. Meser All Sheikh (1974) 26 DLR 145.
—Proceedings u/s.144 were converted into those u/s. 145 on 60th day counting from the day on which notice under section 144 was issued—valid in law. Enat All Akanda Vs. Meser All Sheikh (1974) 26 DLR 210.
—Conversion of proceeding to one section 145.
Conversion of a proceeding u/s 144 into one under section 145 during a period the former was in force is lawful. Gulam Ahad Vs. Samser Ali (1960) 12 DLR 801;PLD:(Dacca) 499, (1960) 10 PLR 816.
—Life of an order u/s. 144 and starting of proceedings u/s.145.
Life of an order u/s. 144 having terminated on the 60th day of the order, both the rival parties claimed possession of the disputed land. The Magistrate in his order recorded that there was apprehension of breach of the peace and on that he can direct drawing up of proceedings under section 145.
The order of the Magistrate for drawing up proceeding u/s. 145, Cr.Procedurc Code, on his being satisfied from the submission of the parties to him that a dispute likely to cause breach of the peace exists, after the expiry of the order u/s.144, drawn up on police report, is valid in law. Alauddin Vs. Ansar Ali, (1954) 6 DLR 567.
Ss. 144 and 364—When examination of a Magistrate who recorded confession becomes necessary. The confession or statement, as the case may be, will be admitted into evidence without examining the Magistrate in the Court. It is only when the Court finds that any of the provisions of section 164 or 364 Cr, P. C. have not been complied with by the Magistrate concerned then it shall take evidence of the concerned Magistrate. Emran Ali Vs. State (1986) 37 DLR 1
S. 144(I)(4)(5)(6)—Ex-parte orders may be made but with facts stated.
The expression "in the interest of public order'; is undoubtedly wider than the maintenance of public order but such a power can be exercised only in urgent cases, and cannot, in view of sub-sec. (6), remain in force for more than two months. It is true that in cases of emergency and in certain other cases the order may be promulgated ex-partc but the Magistrate shall have to set out the material facts in the order which is to be served, in the prescribed manner. Furthermore, in sub-sections (4) and (5) provisions have been made for rescission or alteration of the order by the Magistrate passing the order which is to be served in the prescribed manner. Oali Ahad Vs. Govt. of Peoples Republic of Bangladesh (1974) 26 DLR 376.
8.144(6) : Second order which is merely an extension of the period is in excess of jurisdiction— In case of necessity to meet further apprehension of breach of peace resort to provision in other parts of Part IV could be made. Oali Ahad Vs. Govt. of People's Republic of Bangladesh (1974) 26 DLR 376.
S. 145—In deciding question of possession the Magistrate need not go into question of title. Ghulam Mustafa Vs. Abdul Karim, (1964) 16 DLR (WP) 27
—Superior Court,when will interfere on a finding of fact. The finding of a Magistrate on the , point of possession is a finding of fact in which case the High Court will not ordinarily interfere, but when the circumstances arc such which completely.
-S. 145
vitiate the finding of the trial Court, it is the . boundcn duty of the High,Court to interfere. Ghulam Mustafa Vs^ Abdul Karim, (1964) 16 DLR(WP) 27.
—Cost, awarding of—In a proceeding under section 145 the Magistrate could not refuse awarding costs when he came to the conclusion that ,the first party is entitled to such costs and upon consideration of materials before him he can award a lump sum as costs to the first party. Dwijendra Nath Moitra Vs. Abdul Kashem Biswas. (1963) 15 DLR 340 1964 PLD (Dae) 298
—Computation of the period of starting point.
Period of two months referred to "in first proviso is to be computed u/s. 145(1) from the date of passing preliminary order and not from the date of complaint. Gulam Mustafa Vs. Abdul Karim (1964) 16DLR(W.P)27.
—In deciding question of possession the Magistrate need not go into question of title. Gulam Mustafa Vs. Abdul Karim (1964) 16 DLR (WP) 27.
—Superior Court when will interfere on a finding of fact.
The finding of a Magistrate on the point of possession is a finding of fact in which case the High Court will not ordinarily interfere, but when the circumstances are such which completely vitiate finding of the Trial court, it is the boundcn duty of Ihe High Court to interfere. Gulam Mustafa Vs. . AbdurKarim (1964) 16 DLR (WP) 27.
7-Cost, awarding of—In a proceeding under section 145, the Magistrate could not refuse awarding costs when he came to the conclusion that the first party is entitled to such costs and upon consideration of materials- before him he can award a lump sum as costs to the first party. Dwijendra Nath Moitra Vs. Abdul Kashem Biswas (1963) 15 DLR 340 :1964 PLD (Dacca) 298.
—Order to draw up proceedings under section 145 and directing the case to be transferred for disposal : held - Illegal. Raisur Razzak Vs. Abdur Nur (1950) 2 DLR 27.
—After the Magistrate finds a party as entitled to possession of the disputed land that decision remains binding on the parties which can be never re-opened by starting fresh proceeding, till the question of title and possession is finally decided by the Civil Court. Ilarunor Rashid Haider Vs. Entaj Sheik (1983)35 DLR 286.
—Possession on the date of the preliminary order—The Preliminary order under section 145 was recorded on 29th May, 1950. The finding that a certain party was in possession on 4th November, 1948, was absolutely immaterial for the decision of the case. What the Magistrate should have found was as to who was in possession of the property on the date when the preliminary order, viz the order dated the 29th May, 1950, was passed. PLD 1955 (Pesh)31.
—Party out of possession can not invoke the provisions of section 145 Cr. P.C. Provision of section 145 Cr.P.C. do not permit a party to recover possession of the proceeding land nor the Magistrate has any such power under the said section. A.B.M. Hassan Kabir Vs. Umesh Chandra Dey. (1984) 36 DLR 18.
—S. 145 has no application here—the parties claim joint possession in the disputed lands as co-sharers but where one of the parties claims to have and is actually found to have exclusive possession adverse to the other party the mere fact that the other party sets up a title to joint possession does not render section 145 inapplicable. Md. Askir Mia Vs. Md. Ayub Ullah (1970)22 DLR 705.
—S. 145 deals only with possession. Parlies in possession or persons claiming to be in possession are only the necessary parties in the dispute. Shahabuddin Vs. Yunus (1969) 21 DLR 175.
— Appointment of a receiver, and simultaneously pass an order for drawing up proceedings u/s. 145 illegal. Shamsul Alam Vs. Kanak Chandra (1978) 30 DLR 212.
—S. 145
—Power to order attachment when can be exercised. Shamsul Alam Vs. Kanak Chandra (1978) 30 DLR 212.
—Whether dispute can be referred to arbitration—goods lying on the immovable property attached, such goods are subject to such attachment. 1957 PLD(Kar) 214.
—Attachment of disputed property— An arrangement for its preservation— Receiver of the attached property acts as an officer of the attaching court.
Attachment creates an obligation to take care of the property attached and it is within the powers of the Magistrate to make such arrangement as may be deemed proper in the circumstances for the preservation or management of the property. A person so appointed, can not have the wide powers of the Receiver, his possession would be rather that of an officer of the Magistrate making the attachment. Sultanuddin Ahmed Vs. Mulshed All (1977) 29 DLR 73.
—On the basis of petitions filed by a party the Magistrate, if satisfied, can attach the property in dispute. MusharafAli Vs. Zahir Ahmed (1977) 29 DLR 412.
—Two ways of dealing with a property attached u/s 145 proceedings.
Where a proceeding under section 145 of the Code has been dropped two courses are possible. One is to order release of the property from the attachment without directing delivery to either party and the other is to order that attachment shall continue until the question of title has been decided by the Civil Court.
Money, being the sale proceeds of the usufruct of the attached land, in a proceedings u/s. 145— Receiver appointed by the Court deposited the money with the Court—Magistrate has no power to hand over the money received to any one of the contending parties until the question which party is to get the money is decided by. Civil Court—A party taking the money should be directed to refund the same in the manner provided by S. 547 Cr.P.Code. Bhowal Raj Estate Vs. Md. Chand Mia
(1978) 30 DLR 4&5.
—-Report of local police regarding breach of the peace over the disputed land not infallible.
Report of the local police is not the only source of a Magistrate's information nor is a Police report infallible. As it appears from the learned Magistrate's order itself, the Asstt. S.I. of Police submitted a report showing that there is no longer any apprehension of breach of peace, whereas the O.C. of the P.S. submitted a report showing the apprehension of breach of the peace. The learned Magistrate has of course given reasons for rejecting the report of the A.S.I, of Police. Abdul Farah Molla Vs. A.K.M. Mozammel Huq Sikder (1975) 27 DLR 260.
-—Magistrate's jurisdiction ousted where the disputes concerning the land is finally decided by a civil court. Abdul Farah Molla Vs. A.K.M.Mozammel Huq Sikder (1975) 27 DLR 260.
—Exercise of power under S.145-1-Magistrate should be very careful.
The principle of law evolved under section 145, Cr.P.Code is well established and a Magistrate while exercising the immense power,quasi-judicial in nature, given him by this section, must be very careful lest a party use this provision of law as an instrument either to create evidence of his possession where he has not got any or throw another party out of possession. Abdul Farah Molla Vs. A.K.M. Mozammel Huq. Sikder (1975) 27 DLR 260.
—In hearing a proceeding case under section 145 of the Criminal Procedure Code summons procedure is to be followed. In the present case two P.Ws. were examined on behalf of the first party and on the date on which they were examined the second party was absent. Subsequently, the second party made a prayer for cross-examining the witness and on their prayer an opportunity was given on the second party to cross-examine the P.Ws. But that does not mean that the Magistrate followed warrant procedure in the case. Jafar Ahmed Khandaker Vs. Badiul Sikder. (1974) 26 DLR 437.
—In a dispute u/s,145, Court solely concerned with the question of
possession.
In an enquiry in a proceedings under section 145 'Criminal Procedure Code, the main question relates to the factum of possession of the disputed land. Mrs. Masawood Vs. Md. Meah. (1974) 26 DLR
no.
—Satisfaction of the Magistrate from whatever source it be about the existence of breach of peace is enough for him to draw up proceedings under sec. 145. Sultanuddin Ahmed Vs. Murshed AH (1977) 29 DLR 72.
—Orders passed under sec, 145 are admissible for certain purposes.
Orders passed under section 145 Cr.P.C. are admissible in evidence on general principles as well as under section 13 of the Evidence Act to show who the parties to the dispute were, what, the land in dispute was and who was declared to be entitled to possession. Maharuddi Fakir Vs. Jogendra Kishore Nag. (1975) 27 DLR 398.
—Attachment of the disputed land on his own motion is itself an indication of the Magistrate's satisfaction.
Attachment of the land itself signifies that the Magistrate considered the case one of emergency for which he attached the land." No application for attachment from any quarter is necessary for passing order of attachment. Sultanuddin Ahmed Vs. Murshed All (1977) 29 DLR 72.
—Object of sec. 145 is the prevention of disputes as to immovable property likely to cause a breach of peace and the words used "a dispute likely to cause a breach of peace exist concerning any land or water or the boundaries thereof are wide enough to cover all kinds of disputes not only disputes as to the facts of the possession but also disputes as to the right to possess or the right to own or use immovable property if they are likely to cause a breach of peace. Sultanuddin Ahmed Vs. Murshed AH (1977) 29 DLR 72.
—Object of sec. 145 is prevention of likelihood of breach of Peace over a land regarding its actual
possession or the right to possess or own such land, etc, Ezhar Miah Vs. Hajee Nurul Islam (1977) 29 DLR 386.
—Magistrate's power taken away regarding the question of disputed property's possession, if Civil Court had decided that question. If the Civil Court has already passed an order regulating the possession of the disputed property, the Magistrate is not entitled to exercise the power u/s. 145 of the Code. Ezhar Miah Vs. Hajee Nurul Islam (1977) 29 DLR. 386.
Requisite Conditions—The basic conditions for a proceeding under section 145 is the existence of a dispute concerning any land, etc, between two rival claimants, even though they happen to be co-sharers, which is likely to cause a breach of the peace. The fact that both the parties may be found in joint possession at the conclusion of an inquiry is not a matter to be considered at the time of the preliminary order. Naju Mid Vs. A.S. Shafiuddin (1956) 8 DLR 408.
, —Magistrate can ignore the views expressed in the police report by the police. Naju Mia Vs. A.S. Shafiuddin 8 DLR 408.
—When proceeding under the section should be quashed.
The Magistrate's jurisdiction under section 145 Cr.P.C. depends upon there being a dispute likely to cause a'breach of. peace. Unless the Magistrate is satisfied from a police record or otherwise that there exists a dispute which is likely to cause a breach of the peace, he cannot assume jurisdiction and proceed under that section.
When these essential ingredients of section 145. of the Criminal Procedure Code arc not satisfied, the proceedings under that section should be quashed. Fakruddin Khan Vs. State, (1968) 20 DLR 575,
—The danger of a breach of peace must continue till the time of the final order and where there is no danger at any point of time of any further breach of public peace taking place, the proceeding should be put an end to. ArabindaBhattacharjee Vs. Abdur Rahman (1968) 20 DLR 379.
—Omission by a Magistrate in a complaint under section 145 Cr.P.C. to draw up the,necessary original order under section 145(1) and to affix its copy at the spot under section 145(3) vitiated all the proceedings and the final order passed therein is liable to be set aside—Such material irregularly not curable under section 537 Cr.P.C. Kitab Gul Vs. Niaz Muhd., (1969) 21 DLR (WP) 212.
—Does not contemplate dispute between a party claiming joint possession and another contesting it. Syed Zaman Khandakar Vs. Zubeda Khatun (1973)25 DLR 317.
—Magistrate's order under section 145 Cr.P.C. without stating his satisfaction giving grounds about the likelihood of breach of peace—renders the order illegal. Mohd. Bakhsh Vs. Haji Muhammad & 'Hie State (1969) 21 DLR (WP) 119.
—Source of information : The section does not put any limitation as to the source of information on which a Magistrate could take action. He can take into consideration the background of a case, the basis of the proceedings under section 144 and also the arguments advanced. Helaluddin Vs. FulBahar (1956) 8 DLR 397.
—Failure to service notice : Failure of Magistrate to require notice to be served on the members of the 2nd party is a vital defect. If there had been any error in the notices served, the defect might be cured under section 537 provided the error has caused no failures of justice. Serajul Islam Vs. Abdur Rouf (1951) 3 DLR 202.
—Court was justified to attach the disputed land in the present case when it found there was likelihood of breach of peace over the land, both parties claiming possession thereof and appointed Nazir of the Court as Receiver of the disputed property. Md. Abu Daud Gazi Vs. Anil Kumar Sarkar, (1984) 36 DLR 345.
—Omission to comply with condition of jurisdiction is not a mere irregularity' but -it is illegal. Nesaruddin Vs. Khalilur Rahman (1981) 33 DLR 93.
—Omission to record ground of satisfaction is not a mere irregularity but an illegality—Magistrate takes action on an application u/s. 145 by proceedings on the information received. This does not mean he was satisfied that a breach of peace is likely. Nesaruddin Vs. Khalilur Rahman (1981) 33 DLR 93.
—Without any finding that there is no apprehension of breach of peace concerning the land in question the Magistrate can not drop the Proceeding. Moulana Syed Ahmed Vs. Nurul Islam (1979)31 DLR 13.
—Without materials to show that apprehension of breach of peace ceased, order abating proceeding u/s 145 improper.
In a proceeding under section 145 of the Code of Criminal Procedure the learned Magistrate ought not to have gone into the question of title. He was required to decide whether any and which of the parties was at the site when the preliminary order to possession was passed as required u/s. 145(4) and for this purpose, he was required to take evidences adduced by the parties. In this case there was no material before the learned Magistrate to show that apprehension of the breach of peace ceased to exist. As such the learned Magistrate was not justified to pass order abating proceedings which was drawn up under section 145 of the Code of Criminal Procedure. Nurul Hasan Vs. Kherode Sarkcr (1980) 32 DLR 96.
—Apprehension of breach of the peace when apparent—Magistrate's interference is called for—Magistrate however not to pass final order till civil court decides.
It is to be remembered that the prayer for injunction regarding possession of the land was not granted, though there is no specific refusal cither. In such circumstance, if there is a serious apprehension of breach of peace which is apparent from the record, the exercise of the Magistrate's jurisdiction is called for.
Ends of justice would be met, if the Magistrate is directed not to pass any final order regarding possession till the disposal ,of the suit by the trial Court.Bdnabir Purkayastha Vs. AlekjanBibi (1982) 34 DLR (AD) 98.
—Court is concerned only with possession of immovable property and not with questions of title or incidental right. 7957 PLD(Pesh.) 147.
—Principal objects of section 145 Cr.P.C.—explained.
Principal object of sec. 145 Cr.P.C. are two fold : (I) to prevent the breach of peace over land or water, (2) to restore the possession of the same to the party found to have been forcibly and wrongfully dispossessed within two months next before rnaking the preliminary order under section 145(1} O.P.C. irrespective of its right to possess. The question of title having been left to the Civil Courts for determination. Dr. Akhtar All Vs. The State (1970) 22 DLR (WP) 307.
—Satisfaction of Magistrate about probability of breach of peace necessary for conferring jurisdiction under this section-It need not be stated in express words. A. Razzak Vs. Abdul Majid Molla (1968) 20 DLR 200.
—The expression 'apprehension of breach of peace' recorded in the Magistrate's preliminary order—Non-recording of such finding in the final order is an irregularity curable under section 537 Cr.P.C. and not an illegality. Alt llossain Vs. Sayedur Rahman (1969) 21 DLR 410
—Magistrate must consider both oral and documentary evidence to pass an order under section \45.JabbarAli Gazi Vs. State (1969) 21 DLR 199.
—When there is chance of contrary decisions—order u/s. 145 should not be
passed. As no stay order was passed in staying operation of the order of learned Subordinate Judge allowing the prayer of temporary injunction which is still in force, chance of contrary decision in the case under section 145 Cr.P.C. cannot be altogether ruled out and to avoid such a situation the proceedings under section 145 Cr.P.C. should not be allowed to be continued. Abdur Rahman Munshi Vs. Stale (1980)32 DLR 302.
—Upto the time the enquiry begins, parties may be added. If they are added afterwards, it is an irregularity, but it is not necessary to initiate fresh proceedings, although evidence previously taken out, if the parties added require it, to be again taken m their presence. Nasiruddin Vs. Akbar All (1957) 9 DLR 156.
—Effect of• addition of parties—Where there has been an addition of a party after the initiation of the proceedings, there is no necessity for fresh proceedings, if the party added was concerned originally in the dispute, which is the foundation of the proceedings. Nasiruddin Vs. Akbar Mi-(1957) 9 DLR 156.
—Magistrate can ignore the views expressed in the police report by the police. Naju Mia Vs. A.S. Shafiuddin (1956) 8 DLR 408.
—Cond'tion necessary to draw up proceeding u/s. 145—The fact that both parties may be found in joint possession at the conclusion of the enquiry is not a matter to be considered at the time, of preliminary order. Naju Mia Vs. A.S. Shafiuddin, 8 DLR 408.
,
—Service of preliminary order on both the parties mandatory, failure of which renders the proceeding null and void. Khirod Chandra Saha Vs. Mqfazzal llossain (1967)19 DLR (Dae) 48.
—Proceedings under section 145 Cr.P.C. initiated at the instance of the servant on behalf of his master not illegal—Master may join later on his own motion or Magistrate can take initiative in the matter after passing the initial order. AH Ahmed Vs. Maniruzzaman (1970).22 DLR 857.
—Dispute giving rise to apprehension of breach of peace must be found to exist when the opposite party appears and joins issue. Syed Zaman Khandakar Vs. Zubeda Khaturi(1973) 25 DLR 317.
—For assumption of jurisdiction and passing orders under section 145 all that is necessary is existence of dispute likely to cause breach of the peace—Magistrate's satisfaction about that from police feport, enough—Examination of witnesses not necessary. Sudhanshu Kumar Dey Vs. Abdul Aziz (1973) 25 DLR 322.
—Proceedings by servant of the owner of the land would not lie—Servant is not in the same position as a Manager—an order under section 145 declaring possession of a person not a party is illegal. All interested persons should be made parties. Aposh All Vs. Amjad Alt Bhuiyan (1958) 10 DLR 248.
—Grounds of satisfaction: Magistrate's order ran to the effect: "Heard both parties. Both parties claim possession............................... As apprehension of a breach of the peace still exists, I draw up proceedings under sec. 145 Gr.P.C. ............................The disputed plots are attached The proceedings drawn up in pursuance of the order, however, did not specifically disclose the grounds of satisfaction. It was thereupon contended that the provisions of sec. 145 which required stating the grounds of satisfaction not being complied with', the proceedings drawn stand vitiated.
Held: In the circumstances of this case, the omission to set out the grounds is curable under sec. 537, Cr.P.C. Hdaluddin Vs. Ful Bahar (1956) 8 DLR 397.
—Attachment and appointment of a receiver.
The power to attach carries with it the power to appoint a receiver. But this power should be very sparingly used. Naju Mia Vs. Shafiuddin (1956) 8 DLR 408.
—Goods lying on the immovable property attached, such goods are subject to such attachment. 1957 PLD (Korj 214.
—Magistrate concerned may drop the proceedings started u/s. 145 if in his opinion there is no dispute or no likelihood of breach of peace without further enquiry but where threat to peace exists he should find out who is in actual possession and put that party in possession by his order.
The point is whether the learned Magistrate while directing the Receiver to hand over the sale-proceeds to the first opposite party acted legally or otherwise.
A proceeding under section 145 of the Code of Criminal Procedure is ^iot a proceeding to decide disputed question of title. An enquiry under section 145 of the Code of Criminal Procedure is limited to the question as to who was in possession in fact at the relevant time. If the Magistrate finds that there is no dispute or there is no likelihood of the breach of peace he may drop the proceedings without further enquiry but if the Magistrate finds that threat to the peace still continues he nccdsto continue and find as to who was in possession to the exclusion of the other parly. He should then pass a final order declaring that such a party is entitled to possession until evicted in due course of law which means by a decree of a Civil Court.
Law requires the other party who had not been found in possession to establish his right and title, if any, in the disputed property before the civil court and to get recovery of possession thereafter in due course of law. Until that is done the order of the Magistrate passed u/s. 145 of the Code as to the right to possess is final. Md. Hossain Vs. Kalachand. (1983) 35 DLR 229.
—Conversion of a proceeding under section 144 into one under section 145 during a period the former was in force is lawful. Gulam Vs. Samser AH (1960) 12 DLR 801=(1961) PLD (Dae) 49.
—Court is concerned only with possession of immovable property and not with questions of title or incidental rights. 9 PLD (Pesh.) 147.
—Proceedings by a servant of the owner of the land would not lie—Section 145 is not intended to apply to servants in the absence of their master and any order made in such circumstances is illegal. (1958)10 DLR 248.
—Declaring possession of a person who was not a party who are to be made parties—Any order under section 145 declaring the possession of a person who was not a party and who never appeared at any stage of the proceedings is bad the peace, all concerned in the dispute and likely to cause breach of the peace should be made parties in a proceedings under sec. 145, irrespective of the question of ultimate decision. (1958)10 DLR 248.
—Whether dispute can be referred to arbitration—Goods lying on the immovable property attached, such goods are subject to such attachment. 9 PLD(Karachi) 214
—Exclusive possession in partnership business cannot be claimed—proceeding under section 145 in such cases would not lie. Abdus Salam Vs. Abdul Kader(1965)17DLR252.
—Pendency of civil suit no bar to the institution of proceedings u/s. 145 Cr.P.Code. Pendency of a civil suit is no bar to the institution of proceeding u/s. 145 Cr.P.C. if the Magistrate is satisfied that there is immediate apprehension of the breach of the peace. Nader All Sheikh Vs. State (1983) 35 DLR 180.
—Civil court when already in seisin of the subject-matter in dispute, and has passed order regulating its possession, etc. criminal court's jurisdiction u/s. 145 Cr.P.Code to interfere with such matter regarding possession, etc. ousted and as such an order of attachment u/s. 145 is illegal. Md. Shahabul Huda Vs. Md Shafi. (1984) 36 DLR (AD) 44.
—Person in possession of the disputed property cannot be ousted during pendency of section 145 proceeding. Md. Shahabul Huda Vs. Md. Shafi. (1984) 36 DLR (AD) 44.
Ss. 145 & 107—Proceeding in respect of the disputed land while pending u/s.145 Cr.P.Code in the Magistrate Court, the 1st party filed an application u/s. 107 of Code and the Magistrate there-upon directed the 2nd party to execute a bond of 2000/- (aka for good behaviour for one year. Thus, two-fold order was passed against the 2nd party, one u/s. 145 not to enter the disputpd land and another to execute bond u/s. 107,' Proceedings u/s. 145 & 107 are different and independent of each other. The Magistrate, however, is competent to act u/s.107 if he is satisfied that any party to ,lhc
proceeding u/s. 145 is likely to commit breach of peace and on such satisfaction may bind down the person who is likely to commit breach of the peace. Execution of a bond u/s. 107 is a separate proceeding from one under u/s. 145—Procedure to be followed in case of proceeding u/s. 107 whereby provision under sections 112, 108 and 110 shall have to be complied with. Non-compliance with the provision of section 107—Show cause notice as provided in sub-scc.(I) of s.107. Mandatory, which cannot be dispensed with—In case of imminent breach of peace Magistrate, as provided in s.114, may issue warrant for arrest of a person. Sultan Ahmed Vs. Hazi Sultan Ahmed. (1982)34 DLR (AD)'352.
Ss. 145 and 146—Sections 145 and 146 Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is likelihood of breach of peace over immovable property. Section 146 cannot be separated from section 145. It can only be read in the context of s.146. The scheme shows once a proceeding has begun with preliminary order it must be followed up by an enquiry and end with final order. There is no question of slopping in the middle unless the Magistrate is satisfied that the breach of peace does not exist whereupon the magistrate cancels his preliminary order! In other words, once a preliminary order is passed it must run its full course. A rcvisional court can stop course only in exceptional cases. What arc those circumstances will depend on the facts of each case. Shahjahan Vs. Sessions Judge (1986) 38 DLR (AD) 246.
Ss. 145 and 537—The Barisal Bench came to the conclusion in a cryptic manner, no doubt that the first party failed to establish a prima facie case of their locus slandi to initiate a proceeding under section 145 Cr.P.C. In view of this conclusion there is no hesitation in saying that-though the Sessions Judge prematurely intervened, passed the order correctly and legally and any such irregularity is curable by the provisions in section 537 CrJP.C. (1986) 38 DLR (AD) 246.
S.145(lV-Initiation of proceedings—
Magistrate may form his opinion and initiate proceeding on any information received even without examining any witness. Dilbaz Khan Vs. State (1959) 11 DLR (WP) 86 : (1958) PLD (Lah.) 264.
8.145(1)—No witness need be examined before making the preliminary order. The preliminary order attaching the disputed property, without examining any witness is valid. In view of the provisions of subsection (1) of section 145 it is not necessary for Magistrate to examine any witness before making the preliminary order. Gulam. Mostafa Vs. Abdul Karim (1964) 16 DLR (WP) 27.
—If other elements arc present, mere omission to state the grounds of his being satisfied as to breach of peace, is curable under law. Magistrate need not pass the order of restraint once the property is attached and a receiver appointed. Jamita Mannan Vs. Aminur Rasul alias Farid Mia (1984) 36 DLR 31.
—Circumstances of the case showed likelihood of the apprehension of breach of peace, though the Magistrate used the words "will be" inadvertently— Order passed on such a situation quite valid. Musharaf All Vs. Zahir Ahmed (1977) 29 DLR. 412.
—Preliminary order under section 145(1) can only be passed when there is apprehension of breach of the peace. Existence of the apprehension of the breach of the peace is sinequa non for the making of the preliminary order under sub-section (1) of section 145 and it must continue to exist all through till the time of passing of the final order. Kalu flowlader Vs. Aminuddin Talukdar (1976) 28 DLR 430.
—Sub-section (I) and the 2nd proviso in sub-section (4)—-Difference between the two explained in terms of .Magistrate's power to take necessary steps.
Under sub-section (1) of section 145, the Magistrate is to be satisfied on a police report or other information whether there is a likelihood of breach of peace over any immovable property, and upon such satisfaction, he will order the drawing up of proceedings. His satisfaction under this sub-section need not be postponed till the notice of an application for making such an order has been served upon the parties concerned. His exercise of mind as to whether breach of peace is likely is different from that as to whether there is an existence of an emergency which would require an order of attachment of the property in dispute under the second proviso to sub-section (4) of section 145. Different consideration would apply in finding out (1) whether there is likelihood of breach of peace and '(2) whether there is an emergency for passing an order of attachment. The former being more urgent the Magistrate has been empowered to draw up his preliminary order under sub-section (1) without even hearing the parties. The latter does not contemplate an order of attachment on an ex-partc application which can well be deferred till the parties claiming interest in it have been notified of the fact in the preliminary order. Md. Fazlul Karim Chowdhury Vs. Abdux Subhan Chowdhury (1974) 26 DLR 291.
—Expression "parlies concerned" appearing in section 145(1) Cr.P.C. means all persons claiming to be in possession at the time of the initial order under sub-scction(I) of section 145 Cr.P.C. AH Ahmed Vs. Maniruzzaman (1970) 22 DLR 857.
—Provision of section 145(1) not followed—order of attachment and appointment-of Receiver illegal.
The learned Magistrate who passed the impugned order did not make any finding that he was satisfied about existence of any dispute likely to cause apprehension of breach of peace staling the ground of his satisfaclioh regarding existence of the breach of peace. He did nol pass any order for drawing up proceedings requiring ihe parlies concerned to put their writlen slatements as required under sub-section (1) of s.145. Nasiruddin Vs. Khalilur Rahman (1981) 33 DLR 93.
—Statement of grounds of satisfaction initially is to keep the parlies informed and to put in their defence. If grounds cxisl for passing order of allachmenl, non-recording of them docs not viliate ihc order. Nasiruddin Vs. Khalilur Rahman (1981) 33 DLR 93.
—S. 145(1) : Failure to pass an order as required by section 145(1)—not a ground to render the proceedings null and void. Abdur Rahim Vs. , Malik Wahid Bakhsh. (1971) 23 DLR (Lah) 3.
—"Actual possession" means actual physical possession. Md. Yasin All Vs. Abdur Razzak (1978) 30 DLR 191.
—When servant possesses the properly in the temporary absence of the master, he cannot say he is in actual possession as contemplated under sec. 745. Md. Yasin Ali Vs. Abur Razzak (1978) 30 DLR 191.
—Agent, caretaker or a servant can possess the property in dispute on behalf of the principal or master, vis-a-vis a 3rd party. In such a circumstance mere physical possession cannot be treated as an actual possession as against the master. Md. Yasin Ali Vs. Abdur Razzak (1978) 30 DLR 191.
—Dispute, its connotation—Law will protect the party who is in possession. — Possession taken in defiance of law will not be allowed. Md. Yasin Ali Vs. Abdur Razzak (1978) 30 DLR 191.
—Actual possession means exclusive possession: object of S.145 is to maintain and preserve public peace. Md. Yasin Ali Vs. Abdur Razzak (1978) 30 DLR 191.
S 145(1)—Filure to state in the final order that an apprehension of the breach of peace exists— not final. Abdur Rahim Vs. Malik Wahid Bakhsh (1971) 23 DLR (Lah.) 3.
—Cinema film : Although the expression "land or water" includes buildings, it is obvious that where the dispute was not concerning the building of a cinema but concerning the film that was to be exhibited in it. Held: The case is not covered by section 145. 2 PLD (Lah) 124.
—Bonafide right to the property.
The section could be invoked where contending parties are not in actual possession but have a
bonafide right to succeed to the subject of dispute. / PLD (Lah.) 397.
Ss.145(1) & 146(1)—Apprehension of breach of the peace must be present for passing a preliminary order u/s. 145(1) and must continue till passing an order u/s. 146(1). Adam Ali Vs. State (1975) 27 DLR (AD) 37.
S. 145(1)(4)—Applies to disputes over lands in joint possession (1953) PLD (B.J.) 59.
—S.145(I)(5)—Proceeding drawn up under section 145(1) cannot be dropped unless " provisions of sub-sec. (5) .complied with.
f Proceeding once drawn up under section 145(1) of the Code cannot be dropped unless the provisions of sub-section(S) of the Code, which runs as follows, are complied with.' "When the parties have compromised their dispute or the person intiating the proceeding has given up his claim of possession or when the Magistrate is satisfied that the apprehension of breach of peace which was the sine qua npn for drawing up a proceeding has ceased to exist." Md. Ibrahim Vs. Mukbul Ahmed, (1970) 22 DLR 128.
—Preliminary order to be cancelled when no dispute exists—There can be no justification for restricting the power of cancellation of preliminary order under section 145(1) to only cases where the parties have compromised their dispute or the person initiating the proceedings has given up his claim to possession. The sub-section imposes no such restriction. Where any party to the dispute or any other person interested has appeared and denied that any such dispute exists or ever existed then he is entitled to lead evidence to establish his contention, and if the Magistrate comes to the conclusion that no such dispute exists or existed, then the Magistrate is not only entitled but is also bound to cancel the preliminary order. Provisions of section 145 indicate that there should be a continuing danger of a breach of peace till the time the final order is made. Manzoor Elahi Vs. Bishambar Das (1964) 16 DLR (SC) 246.
—8.145(3)—Service of the order, Consequence of non-service—Failure of service of the order under sub-section on the person and its publication at a conspicuous piace does not render the proceedings illegal, if no prejudice is caused. It is necessary that the Magistrate should act in strict compliance with sub-section (3) of section 145 regarding service of the order in order to avoid any such question being raised. Gulam Ahad Vs. Samser All (1960) 12 DLR 801 : (1961) PLD (Dae.) 499: (1960) 10 PLR 816.
—Copy of the order not served— Parties present—If all the parties interested in the dispute, in a proceeding under section 145, appear and the enquiry is held in their presence, the order of the Magistrate cannot be impugned on the ground that copy of the order was not served upon the proceeding land and the parties. Entakuddin Vs. Sk.Yaqub 3 DLR 327.
S.145(3)(4) : Magistrate is not justified in taking action under section 145(4) CrP.C. when the fact of pendency of civil litigation between the parties over the disputed property is brought to his notice and especially when security proceedings over the same are pending in his court—Circumstances under which Magistrate is not empowered to take action under section 145 Cr.P.C. discussed. Ghulam Habib Vs. The State (1976) 28DLR(WP) 11.
8.145(4) & 146 : Violation of an order or decree of Civil Court passed in respect of a property in a suit is an offence which is not a "dispute" within the meaning of section 145 and such violation docs not attract section 145—In such case violators are liable for contempt of Court. Shah Muhammad Vs.'Huq Nawaz, (1971) 23 DLR (SC) 14.
—Ss. 145(4) & 146 : Civil suit when pending about the disputed land.
Because of a civil suit regarding the question of title and possession of the disputed land is pending in a Civil Court it is no bar for a Criminal Court to enter and decide the question of possession as envisaged under section 145 Cr.P.Code. Pran Ballav Sutradhar Vs. Shamsul Huq (1970) 22 DLR 662.
8. 145(4) and S. 146 : If possession is I found with one party sub-s.(4) of s.145 will apply. If no decision can be arrived at as to possession, s. 146 will apply. Jamila Mannan Vs. Aminur Rasul, (1984) 36 DLR 31.
—8.145(4) : Attachment of property under section 145(4)—Man appointed to the custody of the property is an agent of the Court and works under its direction. Abul Hashem Dewan Vs. S.D.O. Madaripur, (1968) 20 DLR 22.
8.145(4) : Question as to the attachment of disputed property either I u/s. 145(4) or u/s.!46(I) is one for the Magistrate to decide.
The question whether the subject-matter of dispute should be attached, either under the second proviso of sub-seclion(4) of section 145 or sub-section(I) of section 146 of the Code should be decided by the learned Magistrate concerned in accordance with the law and having regard to the facts and circumstances of the case. In the instant case, the learned Magistrate attached the disputed land on 26.11.67 under sub-. section(I) of section 146 of the Code in pursuance of direction 'given by the High Court. That direction calling upon the learned Magistrate to attach the I land once again, if it had already been released, was, however, not a proper direction. Adam All Vs. State (1975) 27 DLR (AD) 38.
—Satisfaction referred to in sub-sec. (4) of S. 145 of -the Code is the satisfaction of the Magistrate. His satisfaction cannot be replaced by that of a Court in Revision. The learned Magistrate on consideration of relevant facts and the Police report was not satisfied that "there was no likelihood of breach of the peace." In the circumstances we do not see any reason to interfere with his order. Abdul Farah Molla Vs. A.K.M Mozammel Huq (1975) 27 DLR 260.
__.—Magistrate u/s 145(4) is called upon to decide which of the parties was in possession of the disputed land on the date of passing the preliminary order under sub-s. (4). Musharaf All Vs. Zahir Ahmed (1977) 29 DLR 412.
—Question of possession to be decided by the Magistrate.
Whether they are in possession or not will be decided by the Magistrate after taking evidence as required under sub-section(4) of section 145 Cr.P.C. Sullanuddin Vs. Murshed Ali (1977) 29'DLR 73.
—"2nd proviso—Expression "at any time" explained—
Since the power to make an order of attachment is contained in the second proviso to sub-section (4) of section 145, Cr.P.Code its exercise is restricted to a situation which obtains only after the provision of sub-section (3) have been complied with. The expression "at any time" used in the proviso is referable to a point of lime which begins after a copy of the preliminary order made under subsection (1) has been served upon the parties. On the contrary, if the expression is considered to have reference to the point of t;me when the preliminary ordcr'is or about to be passed undcr-sub-scction (I) this would lead not only to the violation of one of the principles of natural justice but would also contravene the express provisions of sub-sec. (3) of section 145 which have expressly incorporated this principle. Md. Fazlul Karim Chowdhury Vs. Abdus Subhan Chowdhury (1974)26 DLR 291
—Emergency, referred to in the 2nd proviso to S. 145(4) relates to control of the property in dispute and not to breach of the peace.
The emergency referred to in the 2nd proviso to S. 145(4) merely relates to control of the property in dispute and not to the breach of peace likely or which has already arisen. The oft-repealed apprehensions that unless ihe Magistrate is found to possess the power to atlach property in dispute as soon as he passed the preliminary order under subsection (I), he may not be able to prevent the breach of peace arc without any foundation. If the breach of peace is so imminenl as lo lead to immediate loss of lives and breaking of heads, if the sole aim is hot to allow the breach of peace over any immovable property, the Magistrate has, under the Code of Criminal Procedure, ample powers to lake appropriate preventive measures relating to the same. Md. Fazlul Karim Chowdhury Vs. Abdus Subhan Chowdhury (1974) 26 DLR 291.
—Auction of the proceeding lands—A
court or public servant or any person who holds auction of any property has the power and jurisdiction to lay down the conditions of auction. A court of law may only see that the condition or condilions are not unconscionable, illegal or unreasonable. Abdul Hamid Vs. The State (1981) 33 DLR 399.
—Steps which the Sub-divisional Magistrate may take for custody and management of the land attached.
After attachment of the proceeding lands under the second proviso to section 145(4) the Sub-Divisional Magistrate had lo lake steps for proper custody and maintenance of the proceeding lands. The effect of an attachment under ihc second proviso to seclion 145(4) is lo bring the property under the control of the Magistrate. He may lake such steps as he ihinks fil for ils proper custody and management in order to prolccl ihc interest of the property attached. He may grant lease of ihc property by public auction so as to continue to earn for the property an income. If he slipulalcs thai ihc bid money already deposited will be forfeited if ihe balance of ihc auction money is nol deposited by the highesl bidder within ihc lime granted then it cannot be said that he has put a condition either illegally or unreasonably. Abdul Hamid Vs. The Stale (1981) 33 DLR 399.
S. 145: 2nd Proviso to sub-sec(4).
Per Justice Badrul Haider Chowdhury (with whom Justice Amirul Islam Chowdhury concurred). Order of attachment can be passed at any moment when the case is pending before Ihe Magistrate if Ihc Magislrale is satisfied lhal .emergency of ihe situation demands that. It is not necessary lhal notice must be served on the parlies to appear and submit statement. Saber Ahmed Vs. Amir llamja (1979) 31 DLR 169.
—Per A.T.M.Masud. J. (dissenting from the majority view) Magistrate is not empowered to pass an order of atlachmcnl under the 2nd proviso withoul: compliance wilh the provisions of subsection(3). of seclion 145 Cr.P.C., i.e. before serving copy of the order on ihc parlies concerned. Saber Ahmed Vs. Amir llamja (1979) 31 DLR 169.
—Party's possession is to be determined after compliance with the provisions of sub s. (4) of s. 145— Decision of the question of possession without hearing the 2nd party is illegal.
- Under sub-section (4) of section 145 Cr.P.C. the Magistrate is to enquire as to possession of the parties receiving all such evidence as may be produced by them and if necessary on taking such further evidence as the learned Magistrate thinks proper. It is after complying with all the mandatory provisions of sub-section (4) of section 145 Cr.P.C. that the learned Magistrate is to decide which of the parties was in possession of the disputed property at the date of the order of drawing up the proceedings. Osman Gani Vs. Beshamddin Ahmed (1980) 32 DLR 53.
8.145(4) : Two months' limit: The proviso to sub-section(4) of section 145 must be construed literally. If the party is found to have been forcibly and wrongfully dispossessed on a day outside two months next before the dale of the order, then the proceedings must be dropped. Debendra Vs.Khandaram(1951)3DLRH9.
—Dispute over possession—Police report about possession not admissible in evidence. Syed Zaman Khandakar Vs. Zubfda Khatun (1973) 25 DLR 317.
Ss.l45(4) & 146—Appointment of receiver—When can be made. Attachment of property can be made at any stage of the proceeding under section 145(1) Cr.P.C. provided the Magistrate considers the case one of emergency but appointment of receiver can only be made after an enquiry is held under section 145(4) and when the conditions laid down in section 146 Cr.P.C. exist, that is, if the Magistrate decides that none of the parties was then in possession or unable to decide which of the parties thereto was then in such possession. Asghar Vs. The State. (1970) 22 DLR (WP)305.
—Receiver, if can be appointed under section 145—Appointment and power of a receiver appointed under section 146.
Section 145 is silent about the appointment of receiver. Even though no prohibition can be spelt out, there is no provision for his appointment until the stage of section 146 of the Code is reached. A Magistrate while holding an enquiry under section 145 may, however, "attach the subject of dispute pending his decision under this section," as laid down in the second proviso to sub-section(4) of section 145.
The appointment of a receiver under section 146 of the Code takes place when after full enquiry under section 145, a Magistrate reaches the conclusion that none of the parties was in possession of the ' disputed property or he is unable to find as to which of them was then in possession of the disputed property. Abui Ilashem Dewan Vs. S.D.O. Madaripur (1968) 20 DLR 22.
—Where a Civil Court is in seixin of a disputed property in respect of which the Court has appointed a Receiver or has passed a decree, the Criminal Court is incompetent to proceed against the same property or appoint a Receiver in respect of iL'Shah Muhammad Vs. Haq Nawaz, (1971) 23 DLR(SC) 14.
S. 145(4)—Criminal Court has no jurisdiction to attach any property while the same property is a subject-matter of a civil dispute and in respect of which the Civil Court has passed an order of injunction to maintain status quo or passed a decree. Shah Muhammad Vs. Haq Nawaz (1971) 23 DLR (SC) 14.
—Question of title : Investigation into the question of title barred, except in exceptional circumstances. Where a Magistrate has any difficulty as no evidence as to actual possession is available, he may accept such evidence as to title as may be given by the parties in order to determine the question of actual possession. Altaf Ifussain Vs. Abinas(1955) 7 DLR 47.
—Magistrate acting under this section has to decide the -possession of the subject of dispute without reference to the merits of the claim of any party. He is not concerned with previous possession or how possession was obtained. Yunus Miah Vs. Abdur Rashid (1969) 21 DLR 322.
-S.I45(4) & (5) : For dropping proceedings under sub-section (5) of section 145 of the Code, Magistrate not bound to hold enquiry under sub-section (4) of the same section-Magistrate, when satisfied that there is no likelihood of any breach of peace, not bound to give parties opportunity to establish the contrary. Mansur All Rari Vs. Chinta llaran Das (1970) 22 DLR 367.
8.145(4) : In the present case there was no material before the learned Magistrate for his finding lhat the 1st party was in possession. The learned Magistrate was required to find out which party was in possession on the date of drawing up proceedings i.e. on the date of the preliminary order as contemplated in sub-scction(4) of section 145 Cr.P.C. MdJsrail All Vs. Md. Numl Islam (1977) '29 DLR 37$.
—An order on the issue of possession passed as required by sub-scction(4) of S.145, not in the presence of both the parties and without hearing ihem is not lawful order. Md. Israil All Vs. Md. Nurul Islam (1977) 29 DLR 377.
—Hear the party, means "hear the arguments of the party",
On 24.10.70 there was an order like this "case received on transfer, parties arc absent. To 11.11.70 for judgment." It appears that the date of judgment was fixed without hearing arguments of the parties. The Magistrate did not hear any argument of the first party even. It does not appear lhat any opportunity was given to the parties for placing their arguments through their lawyers, The expression "hear the parties" as appearing in sub-section (4) of section 145 also means hear argument of the parties. Jafar Ahmed Vs. Badiul Sikdar (1974) 26 DLR 437.
8.145(4) : The expression "land and water"—what it means.
The expression "land and water" in sub-s.(4) of s.145 of the Code includes building, markets, fisheries, crops of other produce of land, and the rents or profits of any such property. Md. Hossain Vs. Kalachand (1983) 35 DLR 229.
—If the Magistrate considers the case as one of emergency, he may attach the land in dispute pending his decisions under this section. Likelihood of breach of peace over possession of land gives the Magistrate power to draw up proceeding u/s. 145, but if attachment of the land is to be ordered, the Magistrate must state that, he considers the case as one of emergency. Abu Sadek Vs. Md. Nurul Mam. (1984) 36 DLR 141.
S. 145(5)—No dispute whereby to cause breach of peace exists—Magistrate loses jurisdiction. A. Razzak Vs. Abdul Majid Molla (1968) 20 DLR 200.
—Attachment of disputed property and simultaneous appointment of receiver valid. The court has inherent jurisdiction to pass any interlocutory order in the exercise of its jurisdiction. The order that was passed by staying the operation" of the order relating to attachment and appointment of receiver was clearly available to the learned Magistrate. No exception can therefore, be taken against it. M.S. Alam Vs. Kanak Chandra (1979) 31 DLR (AD) 150.
—Proceeding drawn when cannot be dropped.
Proceeding once drawn under section 145(1) of the Code cannot be dropped unless there arc materials on record before the Magistrate fo show that the apprehension of breach of peace which gave rise to the proceeding, has disappeared since then or the parties have amicably settled up the dispute, Syed Ahmed Jamil Vs. Kabir Ahmed, (1970) 22 DLR 231.
—Sec. 145(5) : Section 145 indicnfcs thai there should be a continuing danger of a breach of' peace and use of the word "exists" in the present tense in sub-section (5) connotes that the dispute must continue to exist even.at the time when the objection is raised. Sajahan Vs. Sessions. Judge (1986) 38 DLR (AD) 246.
S. 145(6)—Order u/s. 145(6) has- to be made in case of an emergency.
The overriding consideration of an emergency would be the guiding factor in giving jurisdiction to the Magistrate to pass an order because an order passed under the second proviso to sub-section(4) of section 145 Cr.P.C. would be passed only in case of an emergency. Harunor Rashid Haider Vs. Entaj Sheik (1983) 35 DLR 286.
—Under section 145 Cr.P.Code the Magistrate is to decide which of the contending parties is in actual possession of the disputed property without going into the question of title and maintain that party in possession until he will be evicted therefrom by decision of a Civil Court instituted by the party who has been prohibited to disturb the possession of the other party. Harunor Rashid Haider Vs. Entaj Sheik (1983) 35 DLR 286,
—An order u/s. 145(6) is final in between the parties and their successors—Only remedy thereafter is for the unsuccessful party to sue in civil court whose decision shall be binding and the Magistrate would put the successful party in possession of the disputed property in accordance with the decision of civil cowUIarunor Rashid Haider Vs. Entaj Sheik (1983) 35 DLR 286.
—After the Magistrate finds a party as entitled to possession of the disputed land that decision remains binding on the parties which can be never re-opened by starting fresh proceeding, till the question of title and possession is finally decided by the civil court. Harunor Rashid Haider Vs. Entaj Sheik (1983) 35 DLR 286.
—A final order under sec.145(6) should indicate proper consideration of the evidence in its true perspective.
It is clear that there has been some prejudice caused to the first party for pronouncing the order without giving the parties to place their arguments. True it is that the final order in a proceeding under section 145 need not be like a judgment as provided in section 367 of the Cr.P.C. Nevertheless, it should show that it has been pronounced on proper consideration of the evidence in its true perspective. Jafar Ahmed Vs. Badiul Sikdar (1974) 26 DLR 437.
—Sub-section (6) of section 145 provides that when the Magistrate has found upon enquiry the . possession in favour of one of the parties he shall declare such party to be entitled to possession thereof until evicted therefrom in due course of law and he may also restore the party, which has been forcibly. and wrongfully dispossessed, to the possession of the property. Adam All Vs. State (1975) 27 DLR (AD) 37.
—The object of the proceeding under this section is to avoid breach of peace and to maintain status quo as to possession of dispute property provisionally without determining the right of the rival parties to possession. S.MJaffar Vs. A.Q. Shaukat (1969) 21 DLR (SC) 43.
—Petition to Magistrate asking to take action under section 145. Magistrate on his own satisfaction can draw up proceedings and transfer to another Magistrate for disposal. Alternatively , he may transfer the petition itself to another Magistrate for disposal according to law. Haji Nazar Md. Vs. Harisuddin (1955) 7 DLR 97.
(The head-note of the case reported in 2 DLR 27 i has been corrected after the above decision).
—Cost awarded : Cost awarded to one party to be paid by another—Reason for assessing the cost should be stated in the order. Serajul Islam Vs. A. Rouf (1951)3 DLR 202.
—When no such apprehension of breach of the peace exists an order passed under sub-section (6) of S.145 would be illegal. Kalu Howladar Vs. AminuddinTalukdar (1976) 28 DLR 430.
—Criminal Courts acting under section 145 come within the plain meaning of section 12(1) of the Pak. (Administration of Evacuee Property) Ordinance of 1949 which lakes away jurisdiction of Criminal Courts from issuing all legal processes in respect of evacuee property. Malik Md. Sharif Vs. Crown (1954) 6 DLR (WP) 220.
—S. 146 : Trying Magistrate can attach the disputed property only when he finds which of the contending parties are in possession of it or he can not find which party is in possession. As to whether there is any apprehension of breach of peace it is for the Trying Magistrate to decide on his satisfaction about that. Nazir Ahmed Vs. Yonus Meah (1984) 36 DLR 93.
S.146—appears to be a follow up of section 145 of the Cr.P.C. as is evident from the expression "then in such possession" occurring in Sub-section(I) of section 146. Reference may be made to sub-sections (I)(4),(5) and (6) of S. 145 of the Code to ascertain the true import of the said expression. Mam Ali Vs. State (1975) 27 DLR (Appl. Division) 37.
—S.146(I) Proviso.—The proviso to section 146(1) of the Cr.P.C. confers powers upon the Magistrate to withdraw attachment if he is satisfied that there was no longer any likelihood of breach of peace in regard to the subject of dispute and if the discretion has been exercised properly (here is no case for any interference by a rcvisional court. Nazir Ahmed Vs. Yonus Meah (1984) 36 DLR 93.
S. 146(1)—Apprehension of breach of the peace must be present for passing a preliminary order u/s. 145(1) and must continue till passing an order u/s. 146(1). Adam AH Vs. State (1975) 27 DLR (AD) 37.
S. 146(1) : Question as to the attachment of disputed property either u/s.l45(4) or u/s. 146(1) is one for the Magistrate to decide.
The question whether the subject-matter of dispute should be attached, either under the second proviso of sub-section (4) of section 145 or subsection (I) of section 146 of the Code should be decided by the learned Magistrate concerned in accordance with the law and having regard to the facls and circumstances of the case. In the instant case, the learned Magistrate attached the disputed land on 26.11.67 under sub-section^) of section 146 of the Code in pursuance of direction given by the High Court. That direction calling upon the learned Magistrate to attach the land once again, if it had already been released, was however, not a prpper direction. Adam AH Vs. State' (1975) 27DLR (AD) 38.
S. 146(1): Empowers attachment of the property when it is not possible which party is in possession of it. Withdrawal of the attachment order when apprehension ceases. Sub-section(I) of section 146 confers the power of attaching the subject of dispute if the Magistrate decides that none of the parties was "then in such possession." or when he cannot satisfy himself as to which of them was "then in such'possession" of the subject of dispute. The proviso to the sub-section empowers the Magistrate concerned and the District Magistrate to withdraw the order of attachment on being satisfied that there is no longer any apprehension of breach of the peace. Sub-section(2) empowers the Magistrate concerned to appoint a receiver while attaching the subject of dispute. Adam All Vs. State (1975) 27 DLR (Appl. Divn.) 38..
—Magistrate is competent to withdraw an .attachment on his satisfaction that there is no more any likelihood of breach of the peace in regard to the Land in dispute. Abdul Gani Bepari Vs. Shahed Alt Majhi (1969) 21 DLR 327.
S. 146(1)(2) : Jurisdiction to attach disputed property when arises.
It arises only if the Magistrate, upon an enquiry held under sub-section(4) of section 145, comes to a finding that neither party was in actual possession of the same on the date of the preliminary order made under sub-section(I) of section 145 of the Code, or he is unable to satisfy himself as to .which of them was in such possession on that date. It, therefore, follows that in the absence of any such negative finding on the question of actual possession of the subject of dispute, it cannot be attached under sub-section(I) of section 146, nor can a receiver thereof be appointed under sub-section (2) of the said section. Adam AH Vs. State (1975) 27 DLR(Appl. Divn.) 38.
S. 147 : Direction to a party to remove obstructions without first requiring them to put-in written statements of their respective claims is illegal. Mahabhat All Sarkar Vs. Jahur All (1957)9
DLR 257.
S. 154—First Information Report. A FIR is not in the nature of formal charge. (1952) 4 DLR (FC) 53 (P-69, r. h. c.).
—The accused of his own accord went upto the police-station and there to the officer-in-chargc he made a report confessing his guilt and this was recorded under section 154, Cr.P.C.
Held : This report at the police-station is not admissible in evidence. Md. Bakhsh Vs. State 9 DLR (SC) 11.
—Evidentiary value—First Information Report does hot increase the weight of the evidence of anybody save and except of the informant and cannot in law be used to increase the weight of the evidence of any person on whose behalf it has been lodged. And to say to the jury that it does so increase is a serious mis-direction. Keramat All Sheikh Vs. Crown (1952) 4 DLR 435.
—The presence of the witnesses1 names in F.I.R. is only a test for determining whether they were present at the time of the occurrence or not. it is no more proof of their veracity than the absence of their names in the report is proof of their mendacity. Khera Vs. Crown (1957) 9 DLR (WP) 9
—Telegram, if can be treated as F.I.R.— Unsigned telegrams and telephone messages are not First Information Reports and if, after the receipt of a telegram or a telephonic message, the police proceed to the spot and take down the information and get it signed, the statement would be the First Information Report. Crown Vs. Faiz Mohammad 2 PCR 210.
—A First Information Report cannot be used to contradict any prosecution witness. It can be used to contradict only the witness who lodged it and that also in certain circumstances. Crown Vs. Abdul Bari (1950) 2 DLR 120.
—The prosecutor also has the right (with the permission of the Court) of contradicting the maker thereof. Such contradiction cannot be used as substantive evidence but can be taken into consideration. Adalat Vs. Crown (1956) 8 DLR • (F.C.) 69.
—A First Information Report after the police investigation had started, being a statement of a person before the police, is inadmissible in evidence and could not be taken into consideration. Golam Quader Vs. Crown, 2 P.C.R. 17.
—First Information Report—Principle of natural justice, i.e., audi alleram partem, does not apply to the making of a F.I.R.—Opportunity of hearing the accused person before registration of a case is neither necessary nor possible. Muhammad Hayat Vs. The Chief Settlement & Rehabilitation Commissioner (1971) 23 DLR (Lah.) 34.
—Whether a statement recorded by a police-officer is an F.I.R. or a statement made in the course of investigation is one of fact. Muhammad. Siddique Vs. Crown (1954) 6 DLR (F.C.) 56.
—An entry made in the daily diary of the police station on receipt of a telephone message from a head constable to whom the report of the occurrence was staled to have been made by the complaint is not a first information report. Crown Vs. Faiz Mahammad2PCR210.
—First Information Report—All statements relating to commission of a cognizable offence made tc the police before commencement of investigation can be treated as First Information Report—But such statements cannot be used as substantive evidence. The State Vs. Bakmir (1970) 22 DLR (WP) 27.
—First Information Report was made within half an hour of the occurrence but it was sketchy and made no mention of motive—Held, the F.I.R. gives an impression of being genuine and reliable. Mumdiali Vs. The Slate (1970) 22 DLR (WP) 158.
—Where a Chawkidar arrived at the thana and reported the occurrence to an S.I. of Police who did not record the statement of the Chawkidar in writing but recorded the statement of another person, who arrived at the thana later on, as the First Information Report in the case—
—Held : The information given by the Chowkidar being the first in point of time was the First Information Report in the case and the Sessions Judge was wrong in allowing the latter statement to go to the jury. Jamshed AH Vs. Crown (1953) 5 DLR 369.
—If there is an information relating to the commission of the cognizable offence it falls under Sec. 154, even though the police officer may have neglected to record it.
The condition as to character of statements recorded in Sec. 154 is two fold: first, it must be information and, secondly, it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events; It was never meant that any sort of information would fall under section 154 so long as it is first in point of time. Jamshed All Vs. Crown, (1953) 5 DLR 369
—Even when an information is given orally under section 154 and the police-officer docs not reduce it to writing, he acts in an irregular way. And while investigating the truth or otherwise of the information, he is carrying on an investigation.to which provision of &• 162, Cr.P.C. applies.
—First Information Report at the place of occurrence after preliminary investigation— Inadmissible in evidence. All Sher Vs. Slate (1966) 18 DLR (WP) 112.
S. 154 : Accused in the FIR making confession—not admissible. Confessional statement of an accused incorporated in the FIR lodged by him is hit by the provision of section 25 of Evidence Act and as such not admissible against him. State Vs. Ghandal (1961) 13 DLR (WP) 62.
—First Information Report. A FIR is not in the nature of a formal charge. (1952) 4 DLR (FC)
53.
—Its use and effectiveness—N-ot a substantive evidence. FIR is not a piece of substantive evidence and any omission or contradictions found therein can only be used to discredit the maker thereof. At the same time it is a very valuable and important document, and if the case set up at the very earliest moment is completely contradicted by the witnesses appearing at the trial, a grave doubt is created in the mind of ihc Court which needs to be cleared up and explained satisfactorily. WazirVs. Slate (1961) 13 DLR (WP) 5: (1960) PLD (Ka.) 674.
—FIR lodged by the complainant party was followed by one filed by the accused party after li/2 hours. The later information to be treated as not made in the course of investigation, but it is not a substantive evidence. All Zaman Vs. Stale (1963) 75 DLR (SC) 107 : 1963 PLD (SC) 152.
— FIR—Its use and importance cannot be used as a substantive evidence, but for the purpose of contradiction—Absence of witnesses name in the FIR—what can be inferred therefrom—Weight to be attached to FIR.—The scope of its use. The first information report is undoubtedly a most important document in a criminal case, which has been investigated and eventually prosecuted in Court by the police. It may not be evidence by itself, but it certainly furnishes a clue to the possible truth of the allegation against accused. When it is made by an alleged eye-witness, its truth or falsehood falls to be judged in relation to the facts and circumstances established by the evidence in the case. Instances arc not unknown where the prosecuting police have found the first information report to be totally false, and in such a case it is their practice, as well as their duty, to show how and why they came to that conclusion, and it is necessary also that in presenting their own case, they should disown that which is set up in the first information report. Siraz Din Vs. Kala (1964) 16 DLR (SC) 94
—Use of FIR can be used for corroborating or contradicting the informant alone and none else. Anis Mondal Vs. State (1958) 10 DLR 459.
S. 154—The statements in the F.I.R. can be used merely for purpose of corroborating or contradicting the informant not for the purpose of proving that the facts alleged thrcin are correct. Sudhannaya Sarkar Vs. The State(1976) 28 DLR 59.
—FIR can legitimately be used for assessment of the whole prosecution case in the light of facts and circumstances of the case.
It is true that a first information report cannot be used to contradict any witness other than the informant; but the Court can and should take notice of the earliest recorded statement with regard to the prosecution case in the context of the circumstances which make this particular report of vital importance in the assessment of prosecution evidence.
The Court is entitled to note the conflict between the first recorded version of the prosecution case and the story that is made out in course of the trial. A comparison between two such versions of the case is not only permissible, but imperative in the context of the circumstances set out above. State Vs. Basirullah (1964) 16 DLR 189.
—Delay in lodging FIR in a murder case by the culprit himself (confessing the crime)
To estimate the time of the occurrence from the time of the report in relation to the distance to the Police-Station is inappropriate in a case where the culprit himself goes to make the report. It would be understandable if he 'dragged his feet' somewhat. Md. Saleh Vs. State (1965) 17 DLR (SC) 420.
—First information report may be used to corroborate or contradict the maker thereof. Not to contradict third persons. 4 PLD (Lah.) 11.
—Witnesses evidence to the effect that they heard the deceased saying that he (deceased) recognised the accused persons when the deceased was not examined can not corroborate the F.I.R. which is not a substantive piece of evidence.
In the absence of the examination of the informant (Who is dead) we cannot corroborate the prosecution stories stated in the F.I.R, as the F.I.R. Js not a substantive evidence. Sidjannaya Sarkar Vs. The State (1976) 28 DLR 59.
—F.I.R. can be used to corroborate the testimony only of the informant.
F.I.R. may be put in evidence to corroborate only the testimony of the person who gave information incorporated in the First Information Report and not for the purpose of corroborating the evidence of any one else. Evidence of P.Ws, 3, 4, 5 and 7 in the present case before the Committing Magistrate and brought on the record of the trial court under section 288 Cr.P.C. cannot corroborate the story as given in the First Information Report. Sudhannaya Sarkar Vs. The Slate (1976) 28 DLR 59.
—The statement in the F.t.R. can be used merely for the purpose of corroborating or contradicting the informant and not for the purpose of proving that the facts alleged therein are correct. Sudhannaya Sarkar Vs. The State (1976) 28 DLR 59.
—First Information Report
In the early morning "somebody" was sent to the Police Station to give an information about this gruesome murder. In point of time that information carried to the police "by somebody" is the First Information Report within the meaning of section 154 of the Cr.P.C. and all subsequent information fall within the purview of. section 161 of the Cr.P.C. Muslimuddin Vs. State. (1986) 38 DLR (AD) 311.
—First information report not a substantive piece of evidence. But where there is clear conflict between the version given in the F.I.R. and the story made out in the course of trial—it then becomes imperative to note the conflict between them. We arc conscious that a F.I.R. cannot be treated as a substantive piece of evidence, but we cannot help observing that this is a fit and proper case where a departure should be made. It has been held in the case of State Vs. Basirullah (1964) 16 DLR (Dhaka) 189 that the court is entitled to note the conflict between the first recorded version of the prosecution case and the story that was made out in course of the trial. A comparison between two such versions of the case is not only permissible but imperative in the context of the circumstances set out in the said reported case. Nay an Vs. The State (1985) 37 DLR 237.
—Accused named in promptly lodged F.I.R. supported by medical evidence. Majibur Rahman Vs. State (1987) 39 DLR 437.
—Delay in lodging of F.I.R.—The delay is to be understood in the light of the plausibility of the explanation and must depend for consideration on all the facts and circumstances of a given case—here it is the fear of the accused assassins. State Vs. Fazal. (1987) 39 DLR (AD) 166.
/
—Which one of several information about same occurrence to be regarded as the F.I.R.depcnds upon the facts and circumstances of each case. Touhid Mam Vs. The State. (1986) 38 DLR 289.
SsJ54 and 195(I)(c)' : An order of discharge by the Magistrate on the basis of final report submitted by the Police is not a proceedings within the meaning of s.195, Cr.P.Code. In case of falsely implicating a person in the commission of an offence in the FIR may be an offence u/s.211, Penal Code in which case the bar created by s.195 Cr.P.Code will not be attracted—When Magistrate takes cognisance of an offence u/s.211 Penal Code, on the basis of false allegation that does not attract the provisions imposed by s.195 (I)(c) Cr.P.C. Abdul Quander Vs. Serjuddowla (1986) 38 DLR 321.
—Police carries on a statutory duty under sections 154 and 156 in respect of a cognizable offence. Police submitting its report u/s.173 after investigation to the Magistrate who can, if he likes, direct fuflhcf investigation—Police in the matter of investigation enjoys wide powers to complete the same and the High Court can not interfere at the investigation stage—Submission of charge-sheet can not be treated as a finality of investigation, until cognizance of the case is taken by the Court. Bangladesh Vs.Tan KhengHock (1979) 31 DLR (AD) 69.
Ss. 154, 156 & 561A : Extra-ordinary power u/s.561A to be exercised sparingly and with utmost caution—interference at the investigation stage under section 156, not legal. Extra-ordinary power u/s 561A being extraordinary it ought to be used sparingly, carefully, and with utmost caution only where such exercise is justified by the tests laid down in the section itself. There is no doubt that under sections 154 and 156 of the Code the police having a statutory right to investigate a cognizable offence without requiring sanction of the Court, the inherent jurisdiction under section 561A of the Code can not be extended to interfere with investigation. Bangladesh Vs. Tan Khcng Hock (1979) 31 DLR (AD) 69.
First information report.
F.I.R. it being the earliest record of a case, it has got much importance. It enables the court to see what the prosecution case was when it-was started and to check up any subsequent embellishment or any departure therefrom as the case proceeds through different stages. Mafu Alias Mafizuddin Gazi Vs. The State (1979) 31 DLR 16.
—Where a witness does not substantially support his statement made under section 154 Cr.P.C. his evidence must be entirely ignored. Ismail Sarker Vs. State (1981) 33 DLR 320.
Ss.154, 173 and 176 : Provisions of sees.154,173 and 176 explained.
The procedure for investigation by a police officer has been laid down in chapter XIV of the Code of Criminal Procedure from sections 154 to 176.
On completion of the investigation the police officer shall submit to the Magistrate a report in a prescribed 'form'. This report shall be either sending up the accused for trial or recommending that the case against him be cancelled. In the former case the-report is called final report. These two terms do not appear in section 173 or anywhere in chapter XIV. These terms have been provided in the Department Rules of the Police. Sub-section(2) of section 173 provides that a superior police officer may direct further investigation; but such direction can be given only.when the superior police officer has been appointed under section 158.
Section 158, of the Code relates to a report as to investigation of a case under section 157, that is, where commission of a cognizable offence has been suspected by the officer-in-chargc of a police station. State Vs. Abul Kashem. (1975) 27 DLR 342.
S. 155—Charge-Sheet after investigation by the police without order from a competent Magistrate for offences under sections 465 and 471 of the Penal Code— improper. So far as offence under sections 465 and 471 of the Penal Code arc concerned, such offences are non-cognizablc by the police since the accused could not be arrested being charged under the aforesaid sections without any warrant from any appropriate criminal court. Sub-section (2) of section 155 of the Cr.P.C, says that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such cases. The police investigated this case treating it as a cognizable case and did not obtain any order of any relevant Magistrate. Abdul Gaffar Munshi Vs. The State (1983) 35 DLR 76.
—Order to investigate a non-cognizable offence to be given when the Magistrate is reasonably satisfied that an offence has been committed and not otherwise. Hussain Baksh Vs. State (1963) 15 DLR (WP) 33.
—Where a Police Officer takes up investigation in an offence under section 290. P.P.C.(case of nuisance) without the order of a Magistrate, the proceedings are illegal. Hussain Baksh Vs. State (1963) 15 DLR (WP) 33.
Ss. 155, 156, 157, 159 : Provisions of the sections explained.
Section 155 of the Code provides that no police1 officer shall investigate a non-cognizable case without the order of Magistrate of the first or Second class having power to try such case or commit the same for trial. Sub-sec.(I) of section 156 empowers a police officer to investigate without the order of a Magistrate any cognizable case although sub-section (3) provides that any Magistrate empowered under section 190 of the Code may order such an investigation. Section 157
of the Code lays down the procedure to be adopted in the matter of investigation, while section 169 provides that if upon an investigation it appears to the officer making the investigation that there is no sufficient evidence or reasonable grounds of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall release him on his executing a bond with or without sureties to appear if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. Abdur Rahman Vs. State (1977) 29 DLR (SC) 256.
S.155, read with sections 465 and 471 of the Penal Code.
Charge-sheet after investigation by the police without order from a competent Magistrate for officers under sections 465 and 471 of the Penal Code—improper. Abdul Gaffar Munshi Vs. Stale (1983) 35 DLR 76.
—S. 155(1) : Investigation of an offence by police under section 120 of the Railways Act without Magistrate's prior order and trial on the basis of police report is illegal under section 155(1). Slate Vs. Serajul Islam (1969) 21 DLR 99.
—S. 155(2) : If, out of several, one is a cognizable case S. 155 (2) creates no bar for investigation of such a case. Haider Jahan Vs. State, (1973) 35 DLR 455.
—A police officer is not competent to investigate a non-cognizable offence without the order of a competent Magistrate. Hussain Baksh Vs. Slate (1963) 15 DLR (WP) 33: 1963 PLD (Lah.) 46.
—Order to investigate a non-cognizable offence to be given when the Magistrate is reasonably satisfied that an offence has been committed and not otherwise. Hussain Baksh Vs. State (1963) 15 DLR (WP). 33:1963 PLD (Lah.) 46.
Police investigation in non-cognizable cases without orders from competent .Magistrate, held illegal. Against the provision of law the police in the case of a non-cognizable offence' took up investigation and finally submitted a charge-sheet against the accused—Magistrate unaware of the provision of law took cognizance of the case and issued summons against the accused—whole procedure was illegal and quashed and accused discharged. Abut Hossain Sikder Vs. The State (1983) 35 DLR 200.
S. 155(2)—Read with sec 439(4) and S.439A(2).
Police submits charge-sheet to the Chief Metropolitan Magistrate in respect of an offence u/s.427 Penal Code without taking Magistrate's permission for investigation. The Magistrate took cognizance of the offence and started proceedings against the accused—The Sessions Judge being moved against the Magistrate taking cognizance of the offence u/s. 427. Penal Code rejected the prayer for quashing.
Held: Sessions Judge's order in view of the provision of s.439 (4) Cr.P.C. Code is final. Siddique Ahmed Vs. The State (1985) 37 DLR 223.
—S.156 : Cognizable offence—Police has statutory right to investigate into a cognizable offence whether a report is made to that effect or not and if reported, irrespective of the authority of the reporter. Muhammad Hayat Vs. The Chief Settlement officer (1971) 23 DLR (Lah.) 34.
—156(1) : Power of police to investigate a cognizable case—Should receive no interference from the judiciary—Investigation by the police under sec. 156 could not be stopped by a Magistrate. IPLD (Lah.) 87.
—8.156(2) : Irregularity in an investigation does not affect the jurisdiction of the trial Court. Proceeding of a Magistrate during raid in respect of taking illegal gratification—not investigation. 8 PLD (Lah.) 87.
—Even, if the investigation had not been in conformity with the legal povisions of the proviso to section 3 of the Prevention of Corruption Act, it did not necessarily follow that the subsequent trial was vitiated, and this in spite of the fact that the prosecution could not invoke section 156(2), in respect of an unauthorised investigation. 7 PLD (Lah.) 667.
8.156(3)—Taking cognizance of and referring to police investigation. Magistrate not bound to take cognizance of complaint made and, if he desires Police investigation, he must straight away refer the case to Police under section 156(3). Azizur Rahman Vs. Slate (1960) 12 DLR 489,1960 PLD Dae. 631
—Magistrate not bound to take cognizance of an offence on a petition of a complaint—without taking cognizance he may as well proceed under section 156 (3) for investigation. (1958) 10 DLR 412.
Ss. 156(3), 190, 200, 204—Narazi. petition by a complainant—Magistrate's power to initiate proceeding on his own accord. It is open to an informant to subniit a narazi .petition against a final report submitted by the ' 'police before the Magistrate who may ti? it such petition as a petition of complainant, take cognizance under section 190(I)(a) of the Code and examine the petitioner under section 200 of the Code. The Magistrate may irrespective of whether any narazi petition has been filed or not, take cognizance under section 190(I)(b) of the Code on the information contained in the police report, if in his opinion the facts staled therein constitute an offence and he may issue process under section 204 of the Code. The Magistrate may also direct further investigation on specified points\undcr the powers conferred upon him under section 156(3) of the Code. Khorshcd Alam Vs. Stale (1975) 27 DLR 111.
S.158—High Court ordered for retrial of the case—Therefore charges framed by the Magistrate on the basis of the witnesses' deposition to the earlier stage must give way to fresh charges to be framed after examining the witnesses afresh. Abul Mollah Vs. Alauddin Ahmed (1978) 30 DLR 175.
S.159 : Inquiry by Magistrate simultaneously with Police investigation—Not un-warranted. 8 PLD La/i. 448.
S.161—Use of the statement made to the Police—Statement to the Police recorded under the section cannot be used by the prosecution to corroborate or explain the evidence of the witness in Court but the defence can use it for the purpose of contradicting the witness and testing his veracity and never for any other purpose. Sana Mia Vs. State (.1959)11 DLR 17 :1959 PLD Dae. 400.
—Statements of witnesses to the police u/s. 161 Cr.P.C. not at all admissible in law. Ansar All Vs. Slate (1983) 35 DLR 76.
—Statements made u/s.161—How far and to what extent can be used in a criminal trial. Ansar All Vs. State (1983) 35 DLR 76.
—Boiled statement— Cross-examination of P.Ws. by reference to it.
—To allow the defence to cross-examine witnesses with reference to their boiled statement recorded by a Police Officer is not only an illegality but also causes miscarriage of justice. (1953) 5 DLR 169.
—Previous statement of witness, when can be used as a substantive evidence—when a previous statement of witness is contradicted by his evidence in Court—its effect. A previous statement' of witness cannot be utilised as substantive evidence unless this is contained in the evidence of the witness duly recorded in his presence at a previous proceedings, such as commitment proceedings and then put it at the trial under section 288 of the Code of Criminal Procedure.
A statement recorded by the Police under section 161 of the Code of Criminal Procedure cannot be utilised as substantive evidence. It can only be utilised under section 162 of the Code of Criminal Procedure to contradict such witness in the manner provided by section 145 -of the Evidence Act.
When a witness is so contradicted by a statement recorded by the Police in the course of investigation the only effect that it can have is to reduce the evidentiary value of his testimony in Court and make the witness unreliable on the point on which he is so contradicted. Nazir Hossain Vs. Md. Shaft (1965) 17 DLR (SC) 40.
Ss. 161 and 162 : Failure to supply approver's statement—Accused Prejudiced—Approver's statement recorded under section 161 was not supplied to the defence lawyer when he asked for it in the trial court. Accused was convicted on approver's and circumstantial evidence. In the Court of Appeal, the Court offered the statement of the approver recorded under section 161 but the accused's lawyer refused; the Court, however, assured that the contradictions would be treated as unexplained.
This course is not sufficient to amend the prejudice caused to the accused—The right course was either to send the case for retrial or call the approver to have him cross-examined on his statement recorded under section 161. Faiz Ahmed Vs. State (1960) 12 DLR (SC) 42; 1960 PLD (SC)
S, 161—Propriety of maintaining the original statement under section 161. It is improper on the part of the prosecution to remove the original statement of the defence witness recorded under section 161 of the Code and replace it with one which is said to be a copy of the original one. Abdul Kuddus Akanda Vs. The State (1970) 22 DLR 195.
Statements recorded by police under section 161 cannot be used as substantive evidence—Use of such statements as substantive evcdencc causes failure of justice—Such statement can only be used for contradicting prosecution witnesses in the manner provided by section 145 of the Evidence Act. Prya Bala Das Vs. Ata (1970) 22 DLR 582.
—Statement recorded by Police under section 161—Court to consider such record only with a view to weighing the evidence actually adduced in court. Prya Bala Das Vs. Ata, (1970) 22 DLR 582.
Statement recorded by Police under section 161 Cr.P.C.—Where such record becomes suspect or unreliable much weight should not be given to such statement or alleged omission by prosecution witnesses—Court should exercise its discretion judicially, if in such circumstances direct evidence of witnesses should be disbelieved. Pry a Bala Das Vs. Ata (1970) 22 DLR 582.
— S- 16KThe statement recorded under section 161 is no evidence in a trial. Ekabbar AH Vs. The State (1970) 22 DLR 620.
—An omission of a fact from the statement is only of value, if it is of such importance that the witness would have almost certainly made it and the police officer would have certainly recorded it, had it been made. The practice of proving such omission of statements is generally to be discouraged. Ekabbar All Vs. The State (1970) 22 DLR 620.
—Statement under the section— Purpose for which it may be used.
Statement under section 161 is not at all evidence. The only purpose of such statement is" to contradict the prosecution witness and that also can be done only after the statement has been duly proved and the provisions of section 145 of Evidence Act has been duly complied with. Abdul Hashem Vs. State (1968) 20 DLR 834.
—Accused's right to get statements.
Accused has the right to get copies of the statements of witnesses recorded by an investigating office? under section 161 and examine them for himself to find out whether there are contradictions. It is not impossible that the defence might be able to abstract from the condensed or boiled statement portions which could be attributed to one or the other of the witness whom it intends to contradict by such statements. Sarafat Vs. Crown (1952) 4 DLR204.
—A boiled statement is really a digest or an abstract of the statement of a number of witnesses. Sarafat Vs. Crownr(1952) 4 DLR 204.
3ecs. 161 and 162 : Recording of witnesses, statement in a boiled down form is
irregular, but unless it causes prejudice to the accused, the trial stands. Md. IsrafilVs. State (1957) 9 DLR 92.
—Statements of witnesses recorded under Sec. 161 cannot be withheld from defence on the plea that they were recorded in a boiled down form. (1953) 5 DLR 313 and also see. (1957) 9 DLR (WP) 1.
—Record of joint statement of several persons—withholding the same prejudices the defence.
—Statement made to a police-officer under Sec. 161 is inadmissible in evidence and cannot be brought on record,53 CWN (DR. 1) 66.
—To allow the defence to cross-examine witnesses with reference to their boiled down statement recorded by a police-officer is not only an illegality but also causes miscarriage of justice. A.F.M. Abdul Jalil Vs. A.Sabur (1953) 5 DLR 169.
S. 162 : Contradiction brought out by defence of a tendered witness—section applicable. Defence by cross-examination brought out certain contradictions in. the evidence of a prosecution witness tendered by prosecution from what he stated to the investigating officer as recorded under section 161. The defence wanted to confront him with what he said before the Investigating Officer but the Sessions Judge disallowed it on the ground that the witness was a tendered witness.
Held : Even though the evidence consisted merely of statements in cross-examination, the defence is entitled to use the statement of the witness taken under section 16T in order to contradict the evidence of the said witnesses elicited in cross-examination. State Vs. Nowab Alt (1961) 13 DLR 646 :1963 PLD (Dae) 61.
—Investigating Officer as a defence witness—cannot be cross-examined by the prosecution. The prosecution having failed to examine the Investigating Officer as a witness for the prosecution the defence examined him as a defence witness and the Investigating Officer in his examination-in-chief made certain statements in favour of the defence whereupon the prosecution cross-examined him.
Held : The Sessions Judge ought not to have allowed the prosecution to cross-examine the Investigating Officer.
No statement made by any person to the Police Officer in the course of a case can be admitted in evidence except for the limited purpose mentioned in section 162 and that, too, at the instance of the accused. Anis Mondal Vs. State (1958) 10 DLR 459.
—The prosecution has no right whatsoever to prove the statement of the witness made to the Police Officer or the witness. Defence only has the right to cross-examine the Investigating Officer. Anis Mondal Vs. State. (1958) 10 DLR 459.
—Police diary—Use by the Court when Investigating Officer is cross-examined. Negative answers by the Investigating Officer—Public Prosecutor's duty in clearing up matter. It is desirable that when an Investigating Officer is being cross-examined as to previous statements made to him by the witness for the prosecution, the Court should have the Police diary before it and see whether the negative answer of the officer really gives a picture of what the witness, in fact had stated. If not, the fact should be borne in mind and the Court should watch whether the matter is cleared up in re-examination. It is the duty of the Public Prosecutor to see that the negative answer from an Investigating Officer in respect of the statements of a witness does not create a wrong impression of what the witness stated before the Police. He must in these cases bring about other statements to explain the matter referred to in cross-examination. If the Public Prosecutor fails to do so, it-is the duty of the Court in fairness to the cases, and the witness, to bring about facts which will clear up the negative answer. This will be legitimate use of the Police diary and one of the modes of taking aid from it in the trial. Anis Mondal Vs. State (1958) 10 DLR 459.
—Where the Investigating Officer was not examined by the Prosecution but was examined by defence, section 162 stood as a bar against the prosecution for cross-examining him as regards the statement made by the witness to the Investigating Officer. Anis Mondal Vs. State (1958) 10 DLR 459.
— Witness must be called for the prosecution. The requirement of section 162 is that the witness must be called for the Prosecution. State Vs. Nawab AH Biswas (1961) 13 DLR 646.
—Statements to the Investigating Officer cannot be used to collaborate Prosecution witnesses. Anis Mondal Vs. State (1958) 10 DLR 459.
—Effect of inadmissible evidence placed before the jury-verdict of guilty, unsafe to rely on. Investigating Officer, examined as a defence witness, made some statements in favour, of the defence. Prosecution thereupon cross-examined the Investigating Officer which the Sessions Judge allowed, but, in his charge to. the jury, he told the latter that the evidence of the Investigating Officer in cross-examination by the prosecution was inadmissible in law and asked them, not to be influenced by the same.
Held : It must be remembered that the jury are laymen and when this evidence had been placed before them it would be impossible for them to shake off the effect of those evidence in spite of the warning given by the learned Judge. The trial has certainly been vitiated by violating the provisions of section 162 Criminal Procedure Code and that jury might have been misled by those inadmissible evidence. Anis Mondal Vs. State (1958) 10 DLR 459.
—Whether a statement recorded by the police is an F.I.R. or a statement made in the course of Investigation is a question of fact. Md. Siddique Vs. Crown 6 DLR (FC) 56.
—Investigating Officer cannot be asked as to what a witness said to him.
The trial Judge is not permitted to ask the Investigating Officer as to the contents of an oral statements made to him by. a certain witness after the F.I.R. was recorded. Such a statement must be eliminated from the recofd. All Haider Vs. Stale (1958) 10 DLR SC 193.
—Dying declaration — Dying declaration made in the course of Police Investigation — admissible. Shahidulla Khan Vs. Slate (1960) 12 ®LR 537: (1961 )PLD (Dae.) 1.
—Where a chowkider arrived at the thana and reported the occurrence to an S.I. of Police who did notrccord the statement of the chowkider in writing but recorded the statement of another person, who arrived at the thana later on, as the first information report.
Held that the information given by the chowkider was the first information report in the case and the Sessions Judge was wrong in allowing [he latter statement to go to the jury. Jamshed All Vs. Crown (1953) 5 DLR 369.
—Omission to supply to accused at trial copies -of statements of witnesses recorded in Police investigation— copies supplied at the hearing of appeal. Where no copy of the approver's statement taken by the Police during investigation was supplied to the accused at (he trial and the contents of the statement were never disclosed to the accused, the irregularity may be strong point in the appeal and raise an inference of prejudice. But this inference is not irrcbuttable and where a copy is supplied to the accused in appeal and its contents are known to the Court and the accused and the counsel for the accused are unable even to suggest thit cross-examination of the witness as to ah alleged omission or contradiction might have led to a break down to the witness or a material part of his testimony, the Court cannot set aside the conviction^ inasmuch as the matter is governed by section 537 of the Code. Faiz Ahmed Vs. State (1960) 12 DLR (SC) 42 = (1960) PLD.
—Defence lawyer entitled to get copies recorded under section 162. Lawyer permitted to defend an accused is entitled to have access to the record and be supplied with copies as provided under section 162 Criminal Procedure Code. State Vs. Ain Khan (1961) 13 DLR 911.
—An omission from the record in case diary of a statement does not amount to contradiction. An omission of a statement from the record is only of value if it is of such importance that the witness would have almost certainly made it and the police-officer would have certainly recorded it, had it been there. Tera Meah Vs. Crown (1955)7 DLR 539.
—Omission of statements from the diary recorded—Practice of proving such omission, not approved : The practice of proving omissions of statements (in the police diary) are generally to be discouraged and without it being known as to whether the Investigating Officer is speaking from his memory or speaking by reference to his diary, it is difficult to say that it is a contradiction of a previous statement and much more so in the case of a statement not reco'rdcd in the dia/y. Tera Meah Vs. Crown (f955)7DLR539.
—Statement to the police : Prosecution witnesses were questioned by the defence whether they made certain statements to the police in the course of investigation and upon their saying that they did, the Investigating Officer was there-after asked as to whether particular witnesses has made particular statements to him. The latter said that in some cases a particular witness had not stated and in some cases in his diary it was not noted as such.
Held : The statements referred to above are not statements coming within the purvtew of section 161, and, therefore, they cannot be proved under section 162 to hold that contradictions have been established. Tera Meah Vs. Crown (1955)7 DLR 539.
—Making one part of a continuous statement before and the other part during investigation by police officer—Former not be covered by section 162 and the latter hit by section 162 Cr.P.G. Mir Muhammad Vs. The Slate (1969) 21 DLR (WP) 217.
—F.I.R. recorded at the place of occurrence after preliminary investigation—Inadmissible in evidence. Ali Sher Vs. State (1966) 18 DLR (WP) 112.
—The mode of contradicting a previous statement as provided in sections 145 and 153(3) of the Evidence Act has nothing to do with the mode prescribed in section 162, Cr.P.C. The credit of a witness may be impeached by proving his former statement inconsistent with any part of his evidence which is liable to be contradicted. Altaf Molla Vs. Crown (1954) 6 DLR 420.
—Previous statements recorded under section 161, Cr.P.C. cannot be proved by the Investigating Officer before the witnesses had actually taken their stand in the witness box. State Vs. Go lam Mostafa (1949) 1 DLR 71 (at page 77, left- hand column).
—Information previous to first information whereupon police action other than investigation into cognizable offence started, is admissible in evidence.
—When a witness has given details of the commission of the crime and of the persons engaged in- committing it, the act of the Police-Officer m subsequently asking the witnesses to point out those persons from a test identification parade cannot be objected to and the evidence of the result of such a test may be rightly given under sec. 9 of the Evidence Act in proof of the identity of the accused without contravening the provisions of Sec. 162 Cr.P.C. Ibrahim Bhak Vs. Crown (1955) 7 DLR (FC) 123 (atp.136. left hand col).
—Identification parade : Held before police—Evidence as to, inadmissible. 5 PLD (Sind) 279.
•—Test identification : Act of identifying in a test identification parade is not a statement hit by section 162 and is admissible in evidence. Bashir Harm Vs. State, 1 DLR (SC) 21.
—Identification of articles before an identifying police-officer is hit by Sec. 162. Evidence of such identification is of no value'. Mir AmirHossain Vs. Crown. (1954) 6 DLR 518.\
—List of stolen property given to the police in the course of investigation—Inadmissible and must be excluded from consideration. Md. Yakub Vs. Crown (1955) 7 DLR (WP) 36.
— Admissibility of evidence of the | pointing out by approver of the place where some incidents took place. The relevant point was whether the pointing out of the place by the approver to the police-officer in the course of investigation where the offence was alleged to have been committed was hit by section 162.
Held : In such a case the provisions of the section are not contravened because what was used at the trial was not a statement made to the police but merely the fact that the witness demonstrated to the police his knowledge of certain localities. Ibrahim BhakVs. Crown (1955) 7 DLR (FC) 123 (133).
— What does not amount to a statement to the police. Where what is at issue at the trial is not a statement to the police by a witness but merely the fact that the witness demonstrated to the police his knowledge of certain localities where some incidents are alleged or proved to have taken place, Sec. 162 of the Code is not contravened by the admission of such evidence. Ibrahim Bhak Vs. Crown (1955) 7 DLR (FC) W (136).
—Statement in the course of investigation. Although in examination-in-chief the prosecution witness stated that he had mentioned the fact of his recognition to the Sub-Inspector of Police but in cross-examination he said that he mentioned the names of the accused persons to the Sub-Inspector of Police.
Held : This statement is hit by sec. 162, and should never have been allowed to go on record. Syed Ahmed Vs. Crown (1950) 2 DLR 244.
—Steps in " furtherance of investigation : In the context in which the word occurs, investigation must refer to the investigation of the specific allegation of crime already reported and the sections can apply only to those statements which are steps in furtherance of the pending investigation. Shahamad Vs. State (1956) 8 DLR (SC) 124.
—The mere fact that a statement was made during investigation is not by itself sufficient to bring it under section 162. The question whether a statement was in the course of an investigation or not is a question of fact to be decided on the circumstances of each case. Shahamad Vs. State (1956) 8 DLR (SC) 124.
—F.I.R. after the police investigation had ; started, being a statement of a person before the police, was not admissible in evidence. Golam Qadir Vs. Crown 2 P.C.R. 17;2 PLD (Lah.) 366.
—Statements to custom officers :
Customs officials are not police-officers and statements made to them arc not covered by section 162. Ayoob Vs. Crown 2 PCR 60.
—Statement made by an accused before a police-officer during investigation—inadmissible. 2 PLD (Lah.) 364.
—Prosecution witness called in defence does not cease to be a witness called for the prosecution—Copy of such a witness's statement before the police should be supplied to the defence. In case of refusal of copy of such statement on what the witness was sought to be contradicted, his evidence should be kept out of consideration. 1954 PLD (Lah.) 210.
—A police officer while he is investigating the truth or otherwise of an information received he is certainly carrying on an investigation under Chapter XIV of the Cr.P.C. and any statement made by persons examined by him will be hit by sec. 162 of CrP.C. JamshedAli Vs. Crown (1953) 5 DLR 369.
—The summary trial should of course be speedy, but it does not dispense with the legal provisions for engaging a lawyer by the accused. As the record shows the accused hardly got any opportunity to be defended by a lawyer. It was contended on behalf of the State that the defence did not suggest any case of placing of the gun in their ring-well. It must be considered that the accused were hardly given any opportunity to arrange their legal defence. In between the dates of their arrest and trial only 3 days elapsed. It is not understood why their trial was held in such a haste. Pair Baksha Vs. Stale (1975) 27 DLR 251.
—Statements made u/s. 162—How far and to what extent can be used in a criminal trial. We are concerned, at the moment, with the first proviso to section 162 Cr.P.C. It is clear from the aforequoted first proviso :
(I) That statements made to the Investigation Officer cannot be used by the prosecution to corroborate or contradict the statements of its own witness, It is true that section 157 of the Evidence Act provides that in order to corroborate testimony of a witness any former statement made by such witness relating to the same fact is admissible in evidence, but this general rule is controlled by the first proviso to section 162 Cr.P.C. Ansar AH Vs. State (1983) 35 DLR 303.
Sections- 162 & 164—Statements made by accused to Magistrate holding "trap"—admissible at a trial—Such statement not hit by sees. 162 or 164. 9PLD(Lah.)25i.
—Ss. 162 and 164—For guidance in recording confession or statement under S.I64 of the Code of Criminal Procedure that prayer for remand to police custody should not be granted when a prisoner has failed to make any confession. State Vs. Lalu Mia (1987) 39 DLR (AD) 117
—S. 164— A statement made under section 164 can never be used as substantive evidence of the facts stated, but it can be used to support or challenge the evidence given in Court by the person who made the statement. (1950) 2 DLR (PC) 39.
—Statements under section 164 come under section 24 of the Evidence Act and are, therefore, excluded from evidence. (1956) 8 DLR (FC) 1.
—The word "statement" in section 339(2) Criminal Procedure Code, refers to either the statement of the approver before the committing Magistrate or his statement at the trial, or to both. They do not include statements under section 164 made by the approver in the course of the investigation. (7956; 8 DLR (F.C.) 1.
—Statement made under section 164, Cr.P.C. is relevant against the maker thereof when they are recorded in compliance with the provisions of section 364 Cr.P.C. (1956) 8 DLR (F.C.) 1.
Recording Magistrate not called as a witness-—Confession admitted in evidence without being proved by the Magistrate who recorded it— Circumstances to put the confession in evidence under section 33, Evidence Act, not proved.
Held : The confession is not admissible. (1951) 3 DLR 383.
—The provisions of section J64 do not in any way affect the admissibility of a statement made by a person, if it falls within section 32 of the Evidence Act. (1951) 3 DLR (FC) 388.
—The word "statement" in section 164(1) includes statements of witnesses or deceased persons and must conform to the provisions of Chap. XXV, Cr.P.C., if it is intended to be used as statements made during investigation under Chap. XIV of the Code. (1951) 3 DLR (F.C,) 388.
_—Section 24 of the Evidence Act applies to statements made by an approver under section 164 and operates to exclude such statements from evidence. (1955) 7 DLR (FC) 123 (129).
—A confession which may be true but not voluntary is not admissible in evidence at all. (1955) 7DLR 633 (636)(rt.hand col.).
—The Magistrate acting under section 164 has, as required by section 364, also to make a memorandum of the confession in his own hand in the language of the Court and to sign and annex it to the record if he does not record the confession himself. If he is unable to make a memorandum, he must state the reason of his inability.(1951) 3 DLR (WPC) 505.
—Confession recorded in narrative form and not in questions and answers— Confessions under section 164 taken down in a narrative form do not render them inadmissible in evidence 'on the plea that they ought to have been recorded in the form of questions and answers.(1951) 3 DLR (WPC) 505.
—A statement under section 164 cannot be used as substantive evidence; it can be used in cross-examining the maker thereof only to show that it was false. (1956) 8 DLR 404 (407).
—A statement under section 164 can properly •be used to enable the jury to decide whether the evidence put in under section 288, Cr.P.C. or the evidence in the sections is to be preferred. (1956)8 DLR 404.
—Previous statements made under section 164 can be used for the purpose of corroborating or contradicting the subsequent statements made in the committing Court or.in'the Court of Session. (1954) 6 DLR (WPC) 188.
Value of statement—A person whose statement is recorded is more or less wedded lo the same. Deposition ef a witness whose statement was recorded under section 164 cannot be doubted simply on the ground that section 164 was resorted lo, (1954) 6 DLR (WPC) 213.
—Confession while the accused in I custody—Accused during the period between his' arrest and his confession remaining in Police I custody for a fortnight.—Confession inadmissible. Haji Year Muhammad Vs. Rahim Dino (1961) U DLR (WP) 58 : (1960) PLD (Kar.) 769.
—Section 25 of the Evidence Act has nothing to do with the confession of an approver recorded > under section 164 before a pardon is tendered to him, ' because the confession is not the statement of a | person who is being tried as an accused when the confession is tendered in evidence. (7955) 7 DLR \ (FC) 123 (129).
_—Confession by an accused before I the commencement of investigation, | Confession by an accused before the commencement oT investigation is admissible in evidence though, such confession does not fall within the provisions of section 164 and though the prescribed formalities are not observed. Abul Hossain Vs. State (I960) 12 DLR 110;( 1960) PLD 438.
—If no pardon has been tendered when the approver makes his statement under section 164, the statement can only be recorded as a confession subject to the restrictions of that section, but where such pardon has been previously tendered and accepted, the statement has to be recorded as that of a witness the former being without and the latter being on oath. (1955) 7 DLR (FC) 123/129.
—Satisfaction of the Magistrate that the confession was voluntary.—Putting only of questions prescribed in the printed form—not enough. (1955) 7 DLR (WPC) 45 (53).
—Magistrate who recorded the statement of witness which is not a substantive evidence and can only be used for corroborating or contradicting may not be called as a witness to prove the statement. Anwar Hossain Vs. Prov. ofE.Pak. (I960) 12 DLR 615.
—In order to ensure the voluntariness of a confession, the questioning of the accused before he makes the cbnfcssion forms an essential factor. The Magistrate must question the accused in pursuance of a real endeavour to find out the object of it.
When there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the Court must accept or reject the confession as a whole. (19J7) 9 DLR 46.
— In course of the investigation' means investigation which is in progress and a statement under this section may be recorded not only at the instance of the police but also at the instance of the accused or the aggrieved person or at the request of the witness himself. (1953) 5 PLD (Lah.) 495.
—After the recording of confession the accused person should be sent to the judicial custody and not to the police custody. Wazir Vs. State (1961) 13 DLR WP 5: (1960) PLD (Kar.) 674.
—A statement recorded by an incompetent Magistrate is admissible. 5 PLD (Lahore) 495.
—When a person is made an approver, his statement has clearly resulted from an inducement but, when such a person is a witness, section 24 of, the Evidence Act can have no application, as his statement is not being used as a confession but as a piece of evidence against persons other than himself. Nor would such a statement be inadmissible on the ground that it was not recorded in terms of section 164(3), Crf.C. (1955) 7 PLD (Lah.) 375.
—Statements made under section 164 is relevant against the maker (accused) thereof when they are recorded in compliance with the provisions of section 364. (7950; 2 PLD (Lah.) 364.
Non-compliance with the provision —
Where the Magistrate recording the confession had failed to follow the requirements of law as set out in sections 164 and 364,Cr.P.C. but had subsequently ' been examined as a witness under the provisions of section 533, Cr.P.C.
Held : The evidence of the Magistrate cured the irregularities and that the confession was not inadmissible in evidence. 2 PLD (Bal.) 1.
Admissibility—Confession is inadmissible in evidence unless the Magistrate is found to have made real and substantial inquiries which he was bound to do as to its voluntary nature before recording it. 2 PLD (Lah.) 68.
—Confession before Magistrate—No
formalities of law observed-—confession is not admissible in evidence. 2 PLD (B.J.) S.
—Warning to the confessing accused-Warning to the confessing accused must be given before commencing the recording of the confession. Magistrate must be satisfied that confession is voluntary and record of the confession must indicate that the confession was voluntary. Said Begum Vs. State (1959) 11 DLR (WP) 22 : (1958) PLD (Lah.) 559.
—It is not necessary that warning to the confessing accused should be given "immediately" before recording the confession. —Warning need be given afresh when continuity of recording the confession is broken. (AIR 1946 Pat. 169; AIR.
7925 Cal. 587 and AIR 1954 Bom. 285 distinguished. AIR 1933 Mad. 74 and AIR 1930 Sind305 refJSheru Vs. State (1959) 11 DLR (WP) 28.
—Confessional statement, oral as well as in writing made by the accused before a Magistrate to whom the accused came voluntarily and who was then put under arrest—Magistrate's evidence to prove accused's confession.
Held : The. accused's statement admitted into evidence in the present case, though of a confessional nature was not hit by the rule laid down by the Judicial Committee in the case otNazir Ahmed Vs. King Emperor. The Magistrate concerned was empowered under section 190(l)(c) of the Criminal Procedure Code to act upon the information furnished and, as such, the information upon which he acted was admissible. Apart from this it cannot be said that the rule laid down in the above mentioned case excludes all confessional statements or admissions. Faqira Vs. State (1966) 18 DLR (SC) 283.
—Confession, its test : A statement is confession, if it be of such a nature that it alone can be the basis of conviction—A statement containing self-exculpatory matter is never a confession—The accused in their statements admitted their presence at the murder but did not directly admit their guilt in terms of the offence.
Held : Such judicial statements cannot be treated as confessional statements. The State Vs. Badiuzzaman, (1973) 25 DLR 41.
—Judicial statement : Incriminating portions of the judicial statement were corroborated by other evidence on record—Admission of presence by the accused persons on the scene of murder—The very admission of presence on the scene indicates that the accused had complicity in the crime and the murder took place in furtherance of their common intention. The State Vs. Badiuzzaman, (1973) 25 DLR 41.
—Confession, its meaning : Confession means admission of the guilty in terms of the offence—Confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. The State Vs. Badiuzzaman, (1973) 25 DLR 41.
—Judicial confession : Magistrate recording confessional statement did not tell the accused that he would not be sent back to police custody—Record shows that the accused made the judicial statement after orders for sending him to judicial custody had been passed within his knowledge—Held : Judicial confession, under the circumstances, was voluntary and true. State Vs. Lulfor Fakir, (1972) 24 DLR 217.
—No statutory obligation that the confessing accused shall be given 3 hours;time to reflect before his confession is taken down. Hari Pad Debnath Vs. Slate, (1967) 19 DLR, (Dae.) 573.
—In a trap case confession of the accused before a Magistrate supervising the trap is a judicial confession and such confession must be recorded under sections 164 and 364—failure of which renders it inadmissible. Gulam Abbas Vs. The State, (1968) 20 DLR (WP) 48.
—Confessional statement may be accepted if it is made after long detention in the police custody and even if some formalities of confessional statements found are omitted. Confessing prisoner in police custody for more than 24 hours-Confession admissible unless other vitiating elements are present. Niab Ali Vs. The State, (1969) 21 DLR 122.
—Investigation about the offence of receipt of bribe money does not commence when the demand for bribe was made—Statement by an accused person in a trap case under the Anti-Corruption Act to a Magistrate or a Police Officer is admissible in evidence and not being one in the course of investigation is not as such hit by section 164 or section 364, Cr.P. Code.
Provision of Pakistan Special Police Establishment Ordinance (VIII of 1948) and that of West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961) are inconsistent with what has been provided in Chapter XIV, Cr.P. Code regarding information to the Police and the matter of investigation and to* the extent of inconsistency, the former prevails over the Chapter XIV of the Cr.P. Code.
Section 2 of the Pakistan Special Police Establishment Ordinance (VIII of 1948) (as well as the West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961) read with instructions which have the force of law issued to the Special Police Establishment by,the Central Government in 1953 are inconsistent with and in derogation of the provisions of sections 154, 156,157 and 173 Cr.P.C. and to the extent of inconsistency override the group of sections in Chapter XIV on which the majority views of the Full Bench referred to above are based. Mohammad Sarwar Vs. The State (1969) 21 DLR (SC) 182.
—The rules framed by the West Pakistan Government under West Pakistan Anti-Corruption Ordinance (XX of 1961) make a departure from the Provisions of Chapter XIV of the Cr.P.C. and envisage a preliminary enquiry to test the genuineness of complaint against a Government servant which includes trap evidence. Mohammad Sarwar Vs. The State (SC) (1969) 21 DLR (SC) 182.
—The admissibility of the statement of an accused made before a Magistrate and recorded by him after the recovery of the tainted money from the accused person would depend on whether that statement was made during the investigation of the crime for which he is prosecuted or for a crime which was not under investigation at that time. If it is made in the course of the investigation of the crime, it should follow the requirements of section 164 of the Code but if it is not in the course of the investigation, it need not do so.
If a confession is recorded without the observance of the formalities of section 164 it need not to be ruled out completely on that score. There is the curative provision of section 533 of the Code allowing aliunde evidence to be taken of such a confessional statement having been made, making it admissible if the error of non-compliance with the provisions of sections 164 and 364 of the Code has not injured the accused as to his defence on merits. Ghulam Abbas vs; The State (1968) 20 DLR(WP)48.
—Warning to be given to the accused—Nature of warning which is held sufficient. Time given to the accused for reflection before confession—No hard and fast rule can be laid down. There is no rule of law which gives precisely the time that the Magistrate must allow for such purpose. This matter as to give time is entirely in the discretion of the Magistrate who must determine what reasonable time in the facts and circumstances of each case he finds it desirable to give for such reflection. State Vs. Jatindra Kumar Sutradhar (1969) 20 DLR 526.
—Statement recorded u/s 164 deposed as being made under coercion—cannot be used as substantive evidence. Statement recorded u/s 164 can be used for contradicting under sections 145 and 155 of the Evidence Act or for corroborating u/s 157. Ismail Sarker Vs. State (1981) 33 DLR 320.
—A confession recorded by a Magistrate in compliance with the provisions of sections 164 &' 364 Cr.P.Code shall be presumed that all the ingredients of S.80, Evidence Act fulfilled.
When the confession has been recorded in accordance with law by observing all the formalities prescribed by law (i.e. by obs'erving all the formalities prescribed by Ss. 164 and 364 Cr.P.C.) and the said confession duly taken is tendered in the Sessions Court, it proves itself under section 80 of the Evidence Act without calling the Magistrate who recorded it. Emran All Vs. State (198$) 37 DLR 1.
—Statements under section 164 can not be used as a substantive evidence—Can be used for contradicting or corroborating a maker thereof. Khashru alias Khorshed Vs. The Slate (1983) 35 DLR 119.
—Statement recorded B/s.464 Cr.P.C. cannot be treated as substantive evidence of the facts stated therein. Such statements recorded by a competent Magistrate u/s. 164 Cr.P.C. can only be used for contradicting the maker of it u/ss.l45 and 155 of the Evidence Act or for the purpose of corroborating former prevails over the Chapter XIV of the Ct.P. Code.
Section 2 of the Pakistan Special Police Establishment Ordinance (VIII of 1948) (as well as the West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961) read with instructions which have the force of law issued to the Special Police Establishment by the Central Government in 1953 are inconsistent with and in derogation of the provisions of sections 154, 156,157 and 173 Cr.P.C. and to the extent of inconsistency override the group of sections in Chapter XIV on which the majority views of the Full Bench referred to above are based. Mohammad Sarwar Vs. The State (1969) 21 DLR (SC) 182.
—The rules framed by the West Pakistan Government under West Pakistan Anti-Corruption Ordinance (XX of 1961) make a departure from the Provisions of Chapter XIV of the Cr.P.C. and envisage a preliminary enquiry to test the genuineness of complaint against a Government servant which includes trap evidence. Mohammad Sarwar Vs. The State (SC) (1969) 21 DLR (SC) 182.
—The admissibility of the statement of an accused made before a Magistrate and recorded by him after the recovery of the tainted money from the accused person would depend on whether that statement was made during the investigation of the crime for which he is prosecuted or for a crime which was not under investigation at that time. If it is made in the course of the investigation of the crime, it should follow the requirements of section 164 of the Code but if it is not in the course of the investigation, it need not do so.
If a confession is recorded without the observance of the formalities of section 164 it need not to be ruled out completely on that score. There is the curative provision of section 533 of the Code allowing aliunde evidence to be taken of such a confessional statement having been made, making it admissible if the error of non-compliance with the provisions of sections 164 and 364 of the Code has not injured the accused as to his defence on merits. Ghulam Abbas vs. The State (1968) 20 DLR(WP)4
—Warning to be given to the accused—Nature of warning which is held sufficient. Time given to the accused for reflection before confession—No hard and fast rule can be laid down. There is no rule of law which gives precisely the time that the Magistrate must allow for such purpose.
This matter as to give time is entirely in the discretion of the Magistrate who must determine what reasonable time in the facts and circumstances of each case he finds it desirable to give for such reflection. State Vs. Jatindra Kumar Sutradhar (196&) 20 DLR 526.
—Statement recorded u/s 164 deposed as being made under coercion—cannot be used as substantive evidence. Statement recorded u/s 164 can be used for contradicting under sections 145 and 155 of the Evidence Act or for corroborating u/s 157. Ismail Sarker Vs. State (1981) 33 DLR 320.
—A confession recorded by a Magistrate in compliance with the provisions of sections 164 &' 364 Cr.P.Code shall be presumed that all the ingredients of S.80, Evidence Act fulfilled. When the confession has been recorded in accordance with law by observing all the formalities prescribed by law (i.e. by observing all the formalities prescribed by Ss. 164 and 364 Cr.P.C.) and the said confession duly taken is tendered in the Sessions Court, it proves itself under section 80 of the Evidence Act without calling the Magistrate who recorded it. Emran AH Vs. State (1985) 37 DLR 1.
—Statements under section 164 can not be used as a substantive evidence—Can be used for contradicting or corroborating a maker thereof. Khashru alias Khorshed Vs. The State (1983) 35 DLR 119.
—Statement recorded 8^8.164 Cr.P.C. cannot be treated as substantive evidence of the facts stated therein. Such statements recorded by a competent Magistrate u/s. 164 Cr.P.C. can only be used for contradicting the maker of it u/se.145 and 155 of the Evidence Act or for the purpose of corroborating him u/s. 157 of the Evidence Act. Khashru alias Khorshed Vs. The State (1983) 35 DLR 119.
—When servant possesses the properly in the temporary absence of the master, he cannot say he is in actual possession as contemplated under sec. 745. Md. Yasin Ali Vs. Abur Razzak (1978) 30 DLR 191.
—Agent, caretaker or a servant can possess the property in dispute on behalf of the principal or master, vis-a-vis a 3rd party. In such a circumstance mere physical possession cannot be treated as an actual possession as against the master. Md. Yasin Ali Vs. Abdur Razzak (1978) 30 DLR 191.
—Dispute, its connotation—Law will protect the party who is in possession. — Possession taken in defiance of law will not be allowed. Md. Yasin Ali Vs. Abdur Razzak (1978) 30 DLR 191.
—Actual possession means exclusive possession: object of S.145 is to maintain and preserve public peace. Md. Yasin Ali Vs. Abdur Razzak (1978) 30 DLR 191.
S 145(1)—Filure to state in the final order that an apprehension of the breach of peace exists— not final. Abdur Rahim Vs. Malik Wahid Bakhsh (1971) 23 DLR (Lah.) 3.
—Cinema film : Although the expression "land or water" includes buildings, it is obvious that where the dispute was not concerning the building of a cinema but concerning the film that was to be exhibited in it. Held: The case is not covered by section 145. 2 PLD (Lah) 124.
—Bonafide right to the property.
The section could be invoked where contending parties are not in actual possession but have a
bonafide right to succeed to the subject of dispute. / PLD (Lah.) 397.
Ss.145(1) & 146(1)—Apprehension of breach of the peace must be present for passing a preliminary order u/s. 145(1) and must continue till passing an order u/s. 146(1). Adam Ali Vs. State (1975) 27 DLR (AD) 37.
S. 145(1)(4)—Applies to disputes over lands in joint possession (1953) PLD (B.J.) 59.
—S.145(I)(5)—Proceeding drawn up under section 145(1) cannot be dropped unless " provisions of sub-sec. (5) .complied with.
f Proceeding once drawn up under section 145(1) of the Code cannot be dropped unless the provisions of sub-section(S) of the Code, which runs as follows, are complied with.' "When the parties have compromised their dispute or the person intiating the proceeding has given up his claim of possession or when the Magistrate is satisfied that the apprehension of breach of peace which was the sine qua npn for drawing up a proceeding has ceased to exist." Md. Ibrahim Vs. Mukbul Ahmed, (1970) 22 DLR 128.
—Preliminary order to be cancelled when no dispute exists—There can be no justification for restricting the power of cancellation of preliminary order under section 145(1) to only cases where the parties have compromised their dispute or the person initiating the proceedings has given up his claim to possession. The sub-section imposes no such restriction. Where any party to the dispute or any other person interested has appeared and denied that any such dispute exists or ever existed then he is entitled to lead evidence to establish his contention, and if the Magistrate comes to the conclusion that no such dispute exists or existed, then the Magistrate is not only entitled but is also bound to cancel the preliminary order. Provisions of section 145 indicate that there should be a continuing danger of a breach of peace till the time the final order is made. Manzoor Elahi Vs. Bishambar Das (1964) 16 DLR (SC) 246.
—8.145(3)—Service of the order, Consequence of non-service—Failure of service of the order under sub-section on the person and its publication at a conspicuous piace does not render the proceedings illegal, if no prejudice is caused. It is necessary that the Magistrate should act in strict compliance with sub-section (3) of section 145 regarding service of the order in order to avoid any such question being raised. Gulam Ahad Vs. Samser All (1960) 12 DLR 801 : (1961) PLD (Dae.) 499: (1960) 10 PLR 816.
—Copy of the order not served— Parties present—If all the parties interested in the dispute, in a proceeding under section 145, appear and the enquiry is held in their presence, the order of the Magistrate cannot be impugned on the ground that copy of the order was not served upon the proceeding land and the parties. Entakuddin Vs. Sk.Yaqub 3 DLR 327.
S.145(3)(4) : Magistrate is not justified in taking action under section 145(4) CrP.C. when the fact of pendency of civil litigation between the parties over the disputed property is brought to his notice and especially when security proceedings over the same are pending in his court—Circumstances under which Magistrate is not empowered to take action under section 145 Cr.P.C. discussed. Ghulam Habib Vs. The State (1976) 28DLR(WP) 11.
8.145(4) & 146 : Violation of an order or decree of Civil Court passed in respect of a property in a suit is an offence which is not a "dispute" within the meaning of section 145 and such violation docs not attract section 145—In such case violators are liable for contempt of Court. Shah Muhammad Vs.'Huq Nawaz, (1971) 23 DLR (SC) 14.
—Ss. 145(4) & 146 : Civil suit when pending about the disputed land.
Because of a civil suit regarding the question of title and possession of the disputed land is pending in a Civil Court it is no bar for a Criminal Court to enter and decide the question of possession as envisaged under section 145 Cr.P.Code. Pran Ballav Sutradhar Vs. Shamsul Huq (1970) 22 DLR 662.
8. 145(4) and S. 146 : If possession is I found with one party sub-s.(4) of s.145 will apply. If no decision can be arrived at as to possession, s. 146 will apply. Jamila Mannan Vs. Aminur Rasul, (1984) 36 DLR 31.
—8.145(4) : Attachment of property under section 145(4)—Man appointed to the custody of the property is an agent of the Court and works under its direction. Abul Hashem Dewan Vs. S.D.O. Madaripur, (1968) 20 DLR 22.
8.145(4) : Question as to the attachment of disputed property either I u/s. 145(4) or u/s.!46(I) is one for the Magistrate to decide.
The question whether the subject-matter of dispute should be attached, either under the second proviso of sub-seclion(4) of section 145 or sub-section(I) of section 146 of the Code should be decided by the learned Magistrate concerned in accordance with the law and having regard to the facts and circumstances of the case. In the instant case, the learned Magistrate attached the disputed land on 26.11.67 under sub-. section(I) of section 146 of the Code in pursuance of direction 'given by the High Court. That direction calling upon the learned Magistrate to attach the I land once again, if it had already been released, was, however, not a proper direction. Adam All Vs. State (1975) 27 DLR (AD) 38.
—Satisfaction referred to in sub-sec. (4) of S. 145 of -the Code is the satisfaction of the Magistrate. His satisfaction cannot be replaced by that of a Court in Revision. The learned Magistrate on consideration of relevant facts and the Police report was not satisfied that "there was no likelihood of breach of the peace." In the circumstances we do not see any reason to interfere with his order. Abdul Farah Molla Vs. A.K.M Mozammel Huq (1975) 27 DLR 260.
__.—Magistrate u/s 145(4) is called upon to decide which of the parties was in possession of the disputed land on the date of passing the preliminary order under sub-s. (4). Musharaf All Vs. Zahir Ahmed (1977) 29 DLR 412.
—Question of possession to be decided by the Magistrate.
Whether they are in possession or not will be decided by the Magistrate after taking evidence as required under sub-section(4) of section 145 Cr.P.C. Sullanuddin Vs. Murshed Ali (1977) 29'DLR 73.
—"2nd proviso—Expression "at any time" explained—
Since the power to make an order of attachment is contained in the second proviso to sub-section (4) of section 145, Cr.P.Code its exercise is restricted to a situation which obtains only after the provision of sub-section (3) have been complied with. The expression "at any time" used in the proviso is referable to a point of lime which begins after a copy of the preliminary order made under subsection (1) has been served upon the parties. On the contrary, if the expression is considered to have reference to the point of t;me when the preliminary ordcr'is or about to be passed undcr-sub-scction (I) this would lead not only to the violation of one of the principles of natural justice but would also contravene the express provisions of sub-sec. (3) of section 145 which have expressly incorporated this principle. Md. Fazlul Karim Chowdhury Vs. Abdus Subhan Chowdhury (1974)26 DLR 291
—Emergency, referred to in the 2nd proviso to S. 145(4) relates to control of the property in dispute and not to breach of the peace.
The emergency referred to in the 2nd proviso to S. 145(4) merely relates to control of the property in dispute and not to the breach of peace likely or which has already arisen. The oft-repealed apprehensions that unless ihe Magistrate is found to possess the power to atlach property in dispute as soon as he passed the preliminary order under subsection (I), he may not be able to prevent the breach of peace arc without any foundation. If the breach of peace is so imminenl as lo lead to immediate loss of lives and breaking of heads, if the sole aim is hot to allow the breach of peace over any immovable property, the Magistrate has, under the Code of Criminal Procedure, ample powers to lake appropriate preventive measures relating to the same. Md. Fazlul Karim Chowdhury Vs. Abdus Subhan Chowdhury (1974) 26 DLR 291.
—Auction of the proceeding lands—A
court or public servant or any person who holds auction of any property has the power and jurisdiction to lay down the conditions of auction. A court of law may only see that the condition or condilions are not unconscionable, illegal or unreasonable. Abdul Hamid Vs. The State (1981) 33 DLR 399.
—Steps which the Sub-divisional Magistrate may take for custody and management of the land attached.
After attachment of the proceeding lands under the second proviso to section 145(4) the Sub-Divisional Magistrate had lo lake steps for proper custody and maintenance of the proceeding lands. The effect of an attachment under ihc second proviso to seclion 145(4) is lo bring the property under the control of the Magistrate. He may lake such steps as he ihinks fil for ils proper custody and management in order to prolccl ihc interest of the property attached. He may grant lease of ihc property by public auction so as to continue to earn for the property an income. If he slipulalcs thai ihc bid money already deposited will be forfeited if ihe balance of ihc auction money is nol deposited by the highesl bidder within ihc lime granted then it cannot be said that he has put a condition either illegally or unreasonably. Abdul Hamid Vs. The Stale (1981) 33 DLR 399.
S. 145: 2nd Proviso to sub-sec(4).
Per Justice Badrul Haider Chowdhury (with whom Justice Amirul Islam Chowdhury concurred). Order of attachment can be passed at any moment when the case is pending before Ihe Magistrate if Ihc Magislrale is satisfied lhal .emergency of ihe situation demands that. It is not necessary lhal notice must be served on the parlies to appear and submit statement. Saber Ahmed Vs. Amir llamja (1979) 31 DLR 169.
—Per A.T.M.Masud. J. (dissenting from the majority view) Magistrate is not empowered to pass an order of atlachmcnl under the 2nd proviso withoul: compliance wilh the provisions of subsection(3). of seclion 145 Cr.P.C., i.e. before serving copy of the order on ihc parlies concerned. Saber Ahmed Vs. Amir llamja (1979) 31 DLR 169.
—Party's possession is to be determined after compliance with the provisions of sub s. (4) of s. 145— Decision of the question of possession without hearing the 2nd party is illegal.
- Under sub-section (4) of section 145 Cr.P.C. the Magistrate is to enquire as to possession of the parties receiving all such evidence as may be produced by them and if necessary on taking such further evidence as the learned Magistrate thinks proper. It is after complying with all the mandatory provisions of sub-section (4) of section 145 Cr.P.C. that the learned Magistrate is to decide which of the parties was in possession of the disputed property at the date of the order of drawing up the proceedings. Osman Gani Vs. Beshamddin Ahmed (1980) 32 DLR 53.
8.145(4) : Two months' limit: The proviso to sub-section(4) of section 145 must be construed literally. If the party is found to have been forcibly and wrongfully dispossessed on a day outside two months next before the dale of the order, then the proceedings must be dropped. Debendra Vs.Khandaram(1951)3DLRH9.
—Dispute over possession—Police report about possession not admissible in evidence. Syed Zaman Khandakar Vs. Zubfda Khatun (1973) 25 DLR 317.
Ss.l45(4) & 146—Appointment of receiver—When can be made. Attachment of property can be made at any stage of the proceeding under section 145(1) Cr.P.C. provided the Magistrate considers the case one of emergency but appointment of receiver can only be made after an enquiry is held under section 145(4) and when the conditions laid down in section 146 Cr.P.C. exist, that is, if the Magistrate decides that none of the parties was then in possession or unable to decide which of the parties thereto was then in such possession. Asghar Vs. The State. (1970) 22 DLR (WP)305.
—Receiver, if can be appointed under section 145—Appointment and power of a receiver appointed under section 146.
Section 145 is silent about the appointment of receiver. Even though no prohibition can be spelt out, there is no provision for his appointment until the stage of section 146 of the Code is reached. A Magistrate while holding an enquiry under section 145 may, however, "attach the subject of dispute pending his decision under this section," as laid down in the second proviso to sub-section(4) of section 145.
The appointment of a receiver under section 146 of the Code takes place when after full enquiry under section 145, a Magistrate reaches the conclusion that none of the parties was in possession of the ' disputed property or he is unable to find as to which of them was then in possession of the disputed property. Abui Ilashem Dewan Vs. S.D.O. Madaripur (1968) 20 DLR 22.
—Where a Civil Court is in seixin of a disputed property in respect of which the Court has appointed a Receiver or has passed a decree, the Criminal Court is incompetent to proceed against the same property or appoint a Receiver in respect of iL'Shah Muhammad Vs. Haq Nawaz, (1971) 23 DLR(SC) 14.
S. 145(4)—Criminal Court has no jurisdiction to attach any property while the same property is a subject-matter of a civil dispute and in respect of which the Civil Court has passed an order of injunction to maintain status quo or passed a decree. Shah Muhammad Vs. Haq Nawaz (1971) 23 DLR (SC) 14.
—Question of title : Investigation into the question of title barred, except in exceptional circumstances. Where a Magistrate has any difficulty as no evidence as to actual possession is available, he may accept such evidence as to title as may be given by the parties in order to determine the question of actual possession. Altaf Ifussain Vs. Abinas(1955) 7 DLR 47.
—Magistrate acting under this section has to decide the -possession of the subject of dispute without reference to the merits of the claim of any party. He is not concerned with previous possession or how possession was obtained. Yunus Miah Vs. Abdur Rashid (1969) 21 DLR 322.
-S.I45(4) & (5) : For dropping proceedings under sub-section (5) of section 145 of the Code, Magistrate not bound to hold enquiry under sub-section (4) of the same section-Magistrate, when satisfied that there is no likelihood of any breach of peace, not bound to give parties opportunity to establish the contrary. Mansur All Rari Vs. Chinta llaran Das (1970) 22 DLR 367.
8.145(4) : In the present case there was no material before the learned Magistrate for his finding lhat the 1st party was in possession. The learned Magistrate was required to find out which party was in possession on the date of drawing up proceedings i.e. on the date of the preliminary order as contemplated in sub-scction(4) of section 145 Cr.P.C. MdJsrail All Vs. Md. Numl Islam (1977) '29 DLR 37$.
—An order on the issue of possession passed as required by sub-scction(4) of S.145, not in the presence of both the parties and without hearing ihem is not lawful order. Md. Israil All Vs. Md. Nurul Islam (1977) 29 DLR 377.
—Hear the party, means "hear the arguments of the party",
On 24.10.70 there was an order like this "case received on transfer, parties arc absent. To 11.11.70 for judgment." It appears that the date of judgment was fixed without hearing arguments of the parties. The Magistrate did not hear any argument of the first party even. It does not appear lhat any opportunity was given to the parties for placing their arguments through their lawyers, The expression "hear the parties" as appearing in sub-section (4) of section 145 also means hear argument of the parties. Jafar Ahmed Vs. Badiul Sikdar (1974) 26 DLR 437.
8.145(4) : The expression "land and water"—what it means.
The expression "land and water" in sub-s.(4) of s.145 of the Code includes building, markets, fisheries, crops of other produce of land, and the rents or profits of any such property. Md. Hossain Vs. Kalachand (1983) 35 DLR 229.
—If the Magistrate considers the case as one of emergency, he may attach the land in dispute pending his decisions under this section. Likelihood of breach of peace over possession of land gives the Magistrate power to draw up proceeding u/s. 145, but if attachment of the land is to be ordered, the Magistrate must state that, he considers the case as one of emergency. Abu Sadek Vs. Md. Nurul Mam. (1984) 36 DLR 141.
S. 145(5)—No dispute whereby to cause breach of peace exists—Magistrate loses jurisdiction. A. Razzak Vs. Abdul Majid Molla (1968) 20 DLR 200.
—Attachment of disputed property and simultaneous appointment of receiver valid. The court has inherent jurisdiction to pass any interlocutory order in the exercise of its jurisdiction. The order that was passed by staying the operation" of the order relating to attachment and appointment of receiver was clearly available to the learned Magistrate. No exception can therefore, be taken against it. M.S. Alam Vs. Kanak Chandra (1979) 31 DLR (AD) 150.
—Proceeding drawn when cannot be dropped.
Proceeding once drawn under section 145(1) of the Code cannot be dropped unless there arc materials on record before the Magistrate fo show that the apprehension of breach of peace which gave rise to the proceeding, has disappeared since then or the parties have amicably settled up the dispute, Syed Ahmed Jamil Vs. Kabir Ahmed, (1970) 22 DLR 231.
—Sec. 145(5) : Section 145 indicnfcs thai there should be a continuing danger of a breach of' peace and use of the word "exists" in the present tense in sub-section (5) connotes that the dispute must continue to exist even.at the time when the objection is raised. Sajahan Vs. Sessions. Judge (1986) 38 DLR (AD) 246.
S. 145(6)—Order u/s. 145(6) has- to be made in case of an emergency.
The overriding consideration of an emergency would be the guiding factor in giving jurisdiction to the Magistrate to pass an order because an order passed under the second proviso to sub-section(4) of section 145 Cr.P.C. would be passed only in case of an emergency. Harunor Rashid Haider Vs. Entaj Sheik (1983) 35 DLR 286.
—Under section 145 Cr.P.Code the Magistrate is to decide which of the contending parties is in actual possession of the disputed property without going into the question of title and maintain that party in possession until he will be evicted therefrom by decision of a Civil Court instituted by the party who has been prohibited to disturb the possession of the other party. Harunor Rashid Haider Vs. Entaj Sheik (1983) 35 DLR 286,
—An order u/s. 145(6) is final in between the parties and their successors—Only remedy thereafter is for the unsuccessful party to sue in civil court whose decision shall be binding and the Magistrate would put the successful party in possession of the disputed property in accordance with the decision of civil cowUIarunor Rashid Haider Vs. Entaj Sheik (1983) 35 DLR 286.
—After the Magistrate finds a party as entitled to possession of the disputed land that decision remains binding on the parties which can be never re-opened by starting fresh proceeding, till the question of title and possession is finally decided by the civil court. Harunor Rashid Haider Vs. Entaj Sheik (1983) 35 DLR 286.
—A final order under sec.145(6) should indicate proper consideration of the evidence in its true perspective.
It is clear that there has been some prejudice caused to the first party for pronouncing the order without giving the parties to place their arguments. True it is that the final order in a proceeding under section 145 need not be like a judgment as provided in section 367 of the Cr.P.C. Nevertheless, it should show that it has been pronounced on proper consideration of the evidence in its true perspective. Jafar Ahmed Vs. Badiul Sikdar (1974) 26 DLR 437.
—Sub-section (6) of section 145 provides that when the Magistrate has found upon enquiry the . possession in favour of one of the parties he shall declare such party to be entitled to possession thereof until evicted therefrom in due course of law and he may also restore the party, which has been forcibly. and wrongfully dispossessed, to the possession of the property. Adam All Vs. State (1975) 27 DLR (AD) 37.
—The object of the proceeding under this section is to avoid breach of peace and to maintain status quo as to possession of dispute property provisionally without determining the right of the rival parties to possession. S.MJaffar Vs. A.Q. Shaukat (1969) 21 DLR (SC) 43.
—Petition to Magistrate asking to take action under section 145. Magistrate on his own satisfaction can draw up proceedings and transfer to another Magistrate for disposal. Alternatively , he may transfer the petition itself to another Magistrate for disposal according to law. Haji Nazar Md. Vs. Harisuddin (1955) 7 DLR 97.
(The head-note of the case reported in 2 DLR 27 i has been corrected after the above decision).
—Cost awarded : Cost awarded to one party to be paid by another—Reason for assessing the cost should be stated in the order. Serajul Islam Vs. A. Rouf (1951)3 DLR 202.
—When no such apprehension of breach of the peace exists an order passed under sub-section (6) of S.145 would be illegal. Kalu Howladar Vs. AminuddinTalukdar (1976) 28 DLR 430.
—Criminal Courts acting under section 145 come within the plain meaning of section 12(1) of the Pak. (Administration of Evacuee Property) Ordinance of 1949 which lakes away jurisdiction of Criminal Courts from issuing all legal processes in respect of evacuee property. Malik Md. Sharif Vs. Crown (1954) 6 DLR (WP) 220.
—S. 146 : Trying Magistrate can attach the disputed property only when he finds which of the contending parties are in possession of it or he can not find which party is in possession. As to whether there is any apprehension of breach of peace it is for the Trying Magistrate to decide on his satisfaction about that. Nazir Ahmed Vs. Yonus Meah (1984) 36 DLR 93.
S.146—appears to be a follow up of section 145 of the Cr.P.C. as is evident from the expression "then in such possession" occurring in Sub-section(I) of section 146. Reference may be made to sub-sections (I)(4),(5) and (6) of S. 145 of the Code to ascertain the true import of the said expression. Mam Ali Vs. State (1975) 27 DLR (Appl. Division) 37.
—S.146(I) Proviso.—The proviso to section 146(1) of the Cr.P.C. confers powers upon the Magistrate to withdraw attachment if he is satisfied that there was no longer any likelihood of breach of peace in regard to the subject of dispute and if the discretion has been exercised properly (here is no case for any interference by a rcvisional court. Nazir Ahmed Vs. Yonus Meah (1984) 36 DLR 93.
S. 146(1)—Apprehension of breach of the peace must be present for passing a preliminary order u/s. 145(1) and must continue till passing an order u/s. 146(1). Adam AH Vs. State (1975) 27 DLR (AD) 37.
S. 146(1) : Question as to the attachment of disputed property either u/s.l45(4) or u/s. 146(1) is one for the Magistrate to decide.
The question whether the subject-matter of dispute should be attached, either under the second proviso of sub-section (4) of section 145 or subsection (I) of section 146 of the Code should be decided by the learned Magistrate concerned in accordance with the law and having regard to the facls and circumstances of the case. In the instant case, the learned Magistrate attached the disputed land on 26.11.67 under sub-section^) of section 146 of the Code in pursuance of direction given by the High Court. That direction calling upon the learned Magistrate to attach the land once again, if it had already been released, was however, not a prpper direction. Adam AH Vs. State' (1975) 27DLR (AD) 38.
S. 146(1): Empowers attachment of the property when it is not possible which party is in possession of it. Withdrawal of the attachment order when apprehension ceases. Sub-section(I) of section 146 confers the power of attaching the subject of dispute if the Magistrate decides that none of the parties was "then in such possession." or when he cannot satisfy himself as to which of them was "then in such'possession" of the subject of dispute. The proviso to the sub-section empowers the Magistrate concerned and the District Magistrate to withdraw the order of attachment on being satisfied that there is no longer any apprehension of breach of the peace. Sub-section(2) empowers the Magistrate concerned to appoint a receiver while attaching the subject of dispute. Adam All Vs. State (1975) 27 DLR (Appl. Divn.) 38..
—Magistrate is competent to withdraw an .attachment on his satisfaction that there is no more any likelihood of breach of the peace in regard to the Land in dispute. Abdul Gani Bepari Vs. Shahed Alt Majhi (1969) 21 DLR 327.
S. 146(1)(2) : Jurisdiction to attach disputed property when arises.
It arises only if the Magistrate, upon an enquiry held under sub-section(4) of section 145, comes to a finding that neither party was in actual possession of the same on the date of the preliminary order made under sub-section(I) of section 145 of the Code, or he is unable to satisfy himself as to .which of them was in such possession on that date. It, therefore, follows that in the absence of any such negative finding on the question of actual possession of the subject of dispute, it cannot be attached under sub-section(I) of section 146, nor can a receiver thereof be appointed under sub-section (2) of the said section. Adam AH Vs. State (1975) 27 DLR(Appl. Divn.) 38.
S. 147 : Direction to a party to remove obstructions without first requiring them to put-in written statements of their respective claims is illegal. Mahabhat All Sarkar Vs. Jahur All (1957)9
DLR 257.
S. 154—First Information Report. A FIR is not in the nature of formal charge. (1952) 4 DLR (FC) 53 (P-69, r. h. c.).
—The accused of his own accord went upto the police-station and there to the officer-in-chargc he made a report confessing his guilt and this was recorded under section 154, Cr.P.C.
Held : This report at the police-station is not admissible in evidence. Md. Bakhsh Vs. State 9 DLR (SC) 11.
—Evidentiary value—First Information Report does hot increase the weight of the evidence of anybody save and except of the informant and cannot in law be used to increase the weight of the evidence of any person on whose behalf it has been lodged. And to say to the jury that it does so increase is a serious mis-direction. Keramat All Sheikh Vs. Crown (1952) 4 DLR 435.
—The presence of the witnesses1 names in F.I.R. is only a test for determining whether they were present at the time of the occurrence or not. it is no more proof of their veracity than the absence of their names in the report is proof of their mendacity. Khera Vs. Crown (1957) 9 DLR (WP) 9
—Telegram, if can be treated as F.I.R.— Unsigned telegrams and telephone messages are not First Information Reports and if, after the receipt of a telegram or a telephonic message, the police proceed to the spot and take down the information and get it signed, the statement would be the First Information Report. Crown Vs. Faiz Mohammad 2 PCR 210.
—A First Information Report cannot be used to contradict any prosecution witness. It can be used to contradict only the witness who lodged it and that also in certain circumstances. Crown Vs. Abdul Bari (1950) 2 DLR 120.
—The prosecutor also has the right (with the permission of the Court) of contradicting the maker thereof. Such contradiction cannot be used as substantive evidence but can be taken into consideration. Adalat Vs. Crown (1956) 8 DLR • (F.C.) 69.
—A First Information Report after the police investigation had started, being a statement of a person before the police, is inadmissible in evidence and could not be taken into consideration. Golam Quader Vs. Crown, 2 P.C.R. 17.
—First Information Report—Principle of natural justice, i.e., audi alleram partem, does not apply to the making of a F.I.R.—Opportunity of hearing the accused person before registration of a case is neither necessary nor possible. Muhammad Hayat Vs. The Chief Settlement & Rehabilitation Commissioner (1971) 23 DLR (Lah.) 34.
—Whether a statement recorded by a police-officer is an F.I.R. or a statement made in the course of investigation is one of fact. Muhammad. Siddique Vs. Crown (1954) 6 DLR (F.C.) 56.
—An entry made in the daily diary of the police station on receipt of a telephone message from a head constable to whom the report of the occurrence was staled to have been made by the complaint is not a first information report. Crown Vs. Faiz Mahammad2PCR210.
—First Information Report—All statements relating to commission of a cognizable offence made tc the police before commencement of investigation can be treated as First Information Report—But such statements cannot be used as substantive evidence. The State Vs. Bakmir (1970) 22 DLR (WP) 27.
—First Information Report was made within half an hour of the occurrence but it was sketchy and made no mention of motive—Held, the F.I.R. gives an impression of being genuine and reliable. Mumdiali Vs. The Slate (1970) 22 DLR (WP) 158.
—Where a Chawkidar arrived at the thana and reported the occurrence to an S.I. of Police who did not record the statement of the Chawkidar in writing but recorded the statement of another person, who arrived at the thana later on, as the First Information Report in the case—
—Held : The information given by the Chowkidar being the first in point of time was the First Information Report in the case and the Sessions Judge was wrong in allowing the latter statement to go to the jury. Jamshed AH Vs. Crown (1953) 5 DLR 369.
—If there is an information relating to the commission of the cognizable offence it falls under Sec. 154, even though the police officer may have neglected to record it.
The condition as to character of statements recorded in Sec. 154 is two fold: first, it must be information and, secondly, it must relate to a cognizable offence on the face of it and not merely in the light of subsequent events; It was never meant that any sort of information would fall under section 154 so long as it is first in point of time. Jamshed All Vs. Crown, (1953) 5 DLR 369
—Even when an information is given orally under section 154 and the police-officer docs not reduce it to writing, he acts in an irregular way. And while investigating the truth or otherwise of the information, he is carrying on an investigation.to which provision of &• 162, Cr.P.C. applies.
—First Information Report at the place of occurrence after preliminary investigation— Inadmissible in evidence. All Sher Vs. Slate (1966) 18 DLR (WP) 112.
S. 154 : Accused in the FIR making confession—not admissible. Confessional statement of an accused incorporated in the FIR lodged by him is hit by the provision of section 25 of Evidence Act and as such not admissible against him. State Vs. Ghandal (1961) 13 DLR (WP) 62.
—First Information Report. A FIR is not in the nature of a formal charge. (1952) 4 DLR (FC)
53.
—Its use and effectiveness—N-ot a substantive evidence. FIR is not a piece of substantive evidence and any omission or contradictions found therein can only be used to discredit the maker thereof. At the same time it is a very valuable and important document, and if the case set up at the very earliest moment is completely contradicted by the witnesses appearing at the trial, a grave doubt is created in the mind of ihc Court which needs to be cleared up and explained satisfactorily. WazirVs. Slate (1961) 13 DLR (WP) 5: (1960) PLD (Ka.) 674.
—FIR lodged by the complainant party was followed by one filed by the accused party after li/2 hours. The later information to be treated as not made in the course of investigation, but it is not a substantive evidence. All Zaman Vs. Stale (1963) 75 DLR (SC) 107 : 1963 PLD (SC) 152.
— FIR—Its use and importance cannot be used as a substantive evidence, but for the purpose of contradiction—Absence of witnesses name in the FIR—what can be inferred therefrom—Weight to be attached to FIR.—The scope of its use. The first information report is undoubtedly a most important document in a criminal case, which has been investigated and eventually prosecuted in Court by the police. It may not be evidence by itself, but it certainly furnishes a clue to the possible truth of the allegation against accused. When it is made by an alleged eye-witness, its truth or falsehood falls to be judged in relation to the facts and circumstances established by the evidence in the case. Instances arc not unknown where the prosecuting police have found the first information report to be totally false, and in such a case it is their practice, as well as their duty, to show how and why they came to that conclusion, and it is necessary also that in presenting their own case, they should disown that which is set up in the first information report. Siraz Din Vs. Kala (1964) 16 DLR (SC) 94
—Use of FIR can be used for corroborating or contradicting the informant alone and none else. Anis Mondal Vs. State (1958) 10 DLR 459.
S. 154—The statements in the F.I.R. can be used merely for purpose of corroborating or contradicting the informant not for the purpose of proving that the facts alleged thrcin are correct. Sudhannaya Sarkar Vs. The State(1976) 28 DLR 59.
—FIR can legitimately be used for assessment of the whole prosecution case in the light of facts and circumstances of the case.
It is true that a first information report cannot be used to contradict any witness other than the informant; but the Court can and should take notice of the earliest recorded statement with regard to the prosecution case in the context of the circumstances which make this particular report of vital importance in the assessment of prosecution evidence.
The Court is entitled to note the conflict between the first recorded version of the prosecution case and the story that is made out in course of the trial. A comparison between two such versions of the case is not only permissible, but imperative in the context of the circumstances set out above. State Vs. Basirullah (1964) 16 DLR 189.
—Delay in lodging FIR in a murder case by the culprit himself (confessing the crime)
To estimate the time of the occurrence from the time of the report in relation to the distance to the Police-Station is inappropriate in a case where the culprit himself goes to make the report. It would be understandable if he 'dragged his feet' somewhat. Md. Saleh Vs. State (1965) 17 DLR (SC) 420.
—First information report may be used to corroborate or contradict the maker thereof. Not to contradict third persons. 4 PLD (Lah.) 11.
—Witnesses evidence to the effect that they heard the deceased saying that he (deceased) recognised the accused persons when the deceased was not examined can not corroborate the F.I.R. which is not a substantive piece of evidence.
In the absence of the examination of the informant (Who is dead) we cannot corroborate the prosecution stories stated in the F.I.R, as the F.I.R. Js not a substantive evidence. Sidjannaya Sarkar Vs. The State (1976) 28 DLR 59.
—F.I.R. can be used to corroborate the testimony only of the informant.
F.I.R. may be put in evidence to corroborate only the testimony of the person who gave information incorporated in the First Information Report and not for the purpose of corroborating the evidence of any one else. Evidence of P.Ws, 3, 4, 5 and 7 in the present case before the Committing Magistrate and brought on the record of the trial court under section 288 Cr.P.C. cannot corroborate the story as given in the First Information Report. Sudhannaya Sarkar Vs. The Slate (1976) 28 DLR 59.
—The statement in the F.t.R. can be used merely for the purpose of corroborating or contradicting the informant and not for the purpose of proving that the facts alleged therein are correct. Sudhannaya Sarkar Vs. The State (1976) 28 DLR 59.
—First Information Report
In the early morning "somebody" was sent to the Police Station to give an information about this gruesome murder. In point of time that information carried to the police "by somebody" is the First Information Report within the meaning of section 154 of the Cr.P.C. and all subsequent information fall within the purview of. section 161 of the Cr.P.C. Muslimuddin Vs. State. (1986) 38 DLR (AD) 311.
—First information report not a substantive piece of evidence. But where there is clear conflict between the version given in the F.I.R. and the story made out in the course of trial—it then becomes imperative to note the conflict between them. We arc conscious that a F.I.R. cannot be treated as a substantive piece of evidence, but we cannot help observing that this is a fit and proper case where a departure should be made. It has been held in the case of State Vs. Basirullah (1964) 16 DLR (Dhaka) 189 that the court is entitled to note the conflict between the first recorded version of the prosecution case and the story that was made out in course of the trial. A comparison between two such versions of the case is not only permissible but imperative in the context of the circumstances set out in the said reported case. Nay an Vs. The State (1985) 37 DLR 237.
—Accused named in promptly lodged F.I.R. supported by medical evidence. Majibur Rahman Vs. State (1987) 39 DLR 437.
—Delay in lodging of F.I.R.—The delay is to be understood in the light of the plausibility of the explanation and must depend for consideration on all the facts and circumstances of a given case—here it is the fear of the accused assassins. State Vs. Fazal. (1987) 39 DLR (AD) 166.
/
—Which one of several information about same occurrence to be regarded as the F.I.R.depcnds upon the facts and circumstances of each case. Touhid Mam Vs. The State. (1986) 38 DLR 289.
SsJ54 and 195(I)(c)' : An order of discharge by the Magistrate on the basis of final report submitted by the Police is not a proceedings within the meaning of s.195, Cr.P.Code. In case of falsely implicating a person in the commission of an offence in the FIR may be an offence u/s.211, Penal Code in which case the bar created by s.195 Cr.P.Code will not be attracted—When Magistrate takes cognisance of an offence u/s.211 Penal Code, on the basis of false allegation that does not attract the provisions imposed by s.195 (I)(c) Cr.P.C. Abdul Quander Vs. Serjuddowla (1986) 38 DLR 321.
—Police carries on a statutory duty under sections 154 and 156 in respect of a cognizable offence. Police submitting its report u/s.173 after investigation to the Magistrate who can, if he likes, direct fuflhcf investigation—Police in the matter of investigation enjoys wide powers to complete the same and the High Court can not interfere at the investigation stage—Submission of charge-sheet can not be treated as a finality of investigation, until cognizance of the case is taken by the Court. Bangladesh Vs.Tan KhengHock (1979) 31 DLR (AD) 69.
Ss. 154, 156 & 561A : Extra-ordinary power u/s.561A to be exercised sparingly and with utmost caution—interference at the investigation stage under section 156, not legal. Extra-ordinary power u/s 561A being extraordinary it ought to be used sparingly, carefully, and with utmost caution only where such exercise is justified by the tests laid down in the section itself. There is no doubt that under sections 154 and 156 of the Code the police having a statutory right to investigate a cognizable offence without requiring sanction of the Court, the inherent jurisdiction under section 561A of the Code can not be extended to interfere with investigation. Bangladesh Vs. Tan Khcng Hock (1979) 31 DLR (AD) 69.
First information report.
F.I.R. it being the earliest record of a case, it has got much importance. It enables the court to see what the prosecution case was when it-was started and to check up any subsequent embellishment or any departure therefrom as the case proceeds through different stages. Mafu Alias Mafizuddin Gazi Vs. The State (1979) 31 DLR 16.
—Where a witness does not substantially support his statement made under section 154 Cr.P.C. his evidence must be entirely ignored. Ismail Sarker Vs. State (1981) 33 DLR 320.
Ss.154, 173 and 176 : Provisions of sees.154,173 and 176 explained.
The procedure for investigation by a police officer has been laid down in chapter XIV of the Code of Criminal Procedure from sections 154 to 176.
On completion of the investigation the police officer shall submit to the Magistrate a report in a prescribed 'form'. This report shall be either sending up the accused for trial or recommending that the case against him be cancelled. In the former case the-report is called final report. These two terms do not appear in section 173 or anywhere in chapter XIV. These terms have been provided in the Department Rules of the Police. Sub-section(2) of section 173 provides that a superior police officer may direct further investigation; but such direction can be given only.when the superior police officer has been appointed under section 158.
Section 158, of the Code relates to a report as to investigation of a case under section 157, that is, where commission of a cognizable offence has been suspected by the officer-in-chargc of a police station. State Vs. Abul Kashem. (1975) 27 DLR 342.
S. 155—Charge-Sheet after investigation by the police without order from a competent Magistrate for offences under sections 465 and 471 of the Penal Code— improper. So far as offence under sections 465 and 471 of the Penal Code arc concerned, such offences are non-cognizablc by the police since the accused could not be arrested being charged under the aforesaid sections without any warrant from any appropriate criminal court. Sub-section (2) of section 155 of the Cr.P.C, says that no police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such cases. The police investigated this case treating it as a cognizable case and did not obtain any order of any relevant Magistrate. Abdul Gaffar Munshi Vs. The State (1983) 35 DLR 76.
—Order to investigate a non-cognizable offence to be given when the Magistrate is reasonably satisfied that an offence has been committed and not otherwise. Hussain Baksh Vs. State (1963) 15 DLR (WP) 33.
—Where a Police Officer takes up investigation in an offence under section 290. P.P.C.(case of nuisance) without the order of a Magistrate, the proceedings are illegal. Hussain Baksh Vs. State (1963) 15 DLR (WP) 33.
Ss. 155, 156, 157, 159 : Provisions of the sections explained.
Section 155 of the Code provides that no police1 officer shall investigate a non-cognizable case without the order of Magistrate of the first or Second class having power to try such case or commit the same for trial. Sub-sec.(I) of section 156 empowers a police officer to investigate without the order of a Magistrate any cognizable case although sub-section (3) provides that any Magistrate empowered under section 190 of the Code may order such an investigation. Section 157
of the Code lays down the procedure to be adopted in the matter of investigation, while section 169 provides that if upon an investigation it appears to the officer making the investigation that there is no sufficient evidence or reasonable grounds of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall release him on his executing a bond with or without sureties to appear if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or commit him for trial. Abdur Rahman Vs. State (1977) 29 DLR (SC) 256.
S.155, read with sections 465 and 471 of the Penal Code.
Charge-sheet after investigation by the police without order from a competent Magistrate for officers under sections 465 and 471 of the Penal Code—improper. Abdul Gaffar Munshi Vs. Stale (1983) 35 DLR 76.
—S. 155(1) : Investigation of an offence by police under section 120 of the Railways Act without Magistrate's prior order and trial on the basis of police report is illegal under section 155(1). Slate Vs. Serajul Islam (1969) 21 DLR 99.
—S. 155(2) : If, out of several, one is a cognizable case S. 155 (2) creates no bar for investigation of such a case. Haider Jahan Vs. State, (1973) 35 DLR 455.
—A police officer is not competent to investigate a non-cognizable offence without the order of a competent Magistrate. Hussain Baksh Vs. Slate (1963) 15 DLR (WP) 33: 1963 PLD (Lah.) 46.
—Order to investigate a non-cognizable offence to be given when the Magistrate is reasonably satisfied that an offence has been committed and not otherwise. Hussain Baksh Vs. State (1963) 15 DLR (WP). 33:1963 PLD (Lah.) 46.
Police investigation in non-cognizable cases without orders from competent .Magistrate, held illegal. Against the provision of law the police in the case of a non-cognizable offence' took up investigation and finally submitted a charge-sheet against the accused—Magistrate unaware of the provision of law took cognizance of the case and issued summons against the accused—whole procedure was illegal and quashed and accused discharged. Abut Hossain Sikder Vs. The State (1983) 35 DLR 200.
S. 155(2)—Read with sec 439(4) and S.439A(2).
Police submits charge-sheet to the Chief Metropolitan Magistrate in respect of an offence u/s.427 Penal Code without taking Magistrate's permission for investigation. The Magistrate took cognizance of the offence and started proceedings against the accused—The Sessions Judge being moved against the Magistrate taking cognizance of the offence u/s. 427. Penal Code rejected the prayer for quashing.
Held: Sessions Judge's order in view of the provision of s.439 (4) Cr.P.C. Code is final. Siddique Ahmed Vs. The State (1985) 37 DLR 223.
—S.156 : Cognizable offence—Police has statutory right to investigate into a cognizable offence whether a report is made to that effect or not and if reported, irrespective of the authority of the reporter. Muhammad Hayat Vs. The Chief Settlement officer (1971) 23 DLR (Lah.) 34.
—156(1) : Power of police to investigate a cognizable case—Should receive no interference from the judiciary—Investigation by the police under sec. 156 could not be stopped by a Magistrate. IPLD (Lah.) 87.
—8.156(2) : Irregularity in an investigation does not affect the jurisdiction of the trial Court. Proceeding of a Magistrate during raid in respect of taking illegal gratification—not investigation. 8 PLD (Lah.) 87.
—Even, if the investigation had not been in conformity with the legal povisions of the proviso to section 3 of the Prevention of Corruption Act, it did not necessarily follow that the subsequent trial was vitiated, and this in spite of the fact that the prosecution could not invoke section 156(2), in respect of an unauthorised investigation. 7 PLD (Lah.) 667.
8.156(3)—Taking cognizance of and referring to police investigation. Magistrate not bound to take cognizance of complaint made and, if he desires Police investigation, he must straight away refer the case to Police under section 156(3). Azizur Rahman Vs. Slate (1960) 12 DLR 489,1960 PLD Dae. 631
—Magistrate not bound to take cognizance of an offence on a petition of a complaint—without taking cognizance he may as well proceed under section 156 (3) for investigation. (1958) 10 DLR 412.
Ss. 156(3), 190, 200, 204—Narazi. petition by a complainant—Magistrate's power to initiate proceeding on his own accord. It is open to an informant to subniit a narazi .petition against a final report submitted by the ' 'police before the Magistrate who may ti? it such petition as a petition of complainant, take cognizance under section 190(I)(a) of the Code and examine the petitioner under section 200 of the Code. The Magistrate may irrespective of whether any narazi petition has been filed or not, take cognizance under section 190(I)(b) of the Code on the information contained in the police report, if in his opinion the facts staled therein constitute an offence and he may issue process under section 204 of the Code. The Magistrate may also direct further investigation on specified points\undcr the powers conferred upon him under section 156(3) of the Code. Khorshcd Alam Vs. Stale (1975) 27 DLR 111.
S.158—High Court ordered for retrial of the case—Therefore charges framed by the Magistrate on the basis of the witnesses' deposition to the earlier stage must give way to fresh charges to be framed after examining the witnesses afresh. Abul Mollah Vs. Alauddin Ahmed (1978) 30 DLR 175.
S.159 : Inquiry by Magistrate simultaneously with Police investigation—Not un-warranted. 8 PLD La/i. 448.
S.161—Use of the statement made to the Police—Statement to the Police recorded under the section cannot be used by the prosecution to corroborate or explain the evidence of the witness in Court but the defence can use it for the purpose of contradicting the witness and testing his veracity and never for any other purpose. Sana Mia Vs. State (.1959)11 DLR 17 :1959 PLD Dae. 400.
—Statements of witnesses to the police u/s. 161 Cr.P.C. not at all admissible in law. Ansar All Vs. Slate (1983) 35 DLR 76.
—Statements made u/s.161—How far and to what extent can be used in a criminal trial. Ansar All Vs. State (1983) 35 DLR 76.
—Boiled statement— Cross-examination of P.Ws. by reference to it.
—To allow the defence to cross-examine witnesses with reference to their boiled statement recorded by a Police Officer is not only an illegality but also causes miscarriage of justice. (1953) 5 DLR 169.
—Previous statement of witness, when can be used as a substantive evidence—when a previous statement of witness is contradicted by his evidence in Court—its effect. A previous statement' of witness cannot be utilised as substantive evidence unless this is contained in the evidence of the witness duly recorded in his presence at a previous proceedings, such as commitment proceedings and then put it at the trial under section 288 of the Code of Criminal Procedure.
A statement recorded by the Police under section 161 of the Code of Criminal Procedure cannot be utilised as substantive evidence. It can only be utilised under section 162 of the Code of Criminal Procedure to contradict such witness in the manner provided by section 145 -of the Evidence Act.
When a witness is so contradicted by a statement recorded by the Police in the course of investigation the only effect that it can have is to reduce the evidentiary value of his testimony in Court and make the witness unreliable on the point on which he is so contradicted. Nazir Hossain Vs. Md. Shaft (1965) 17 DLR (SC) 40.
Ss. 161 and 162 : Failure to supply approver's statement—Accused Prejudiced—Approver's statement recorded under section 161 was not supplied to the defence lawyer when he asked for it in the trial court. Accused was convicted on approver's and circumstantial evidence. In the Court of Appeal, the Court offered the statement of the approver recorded under section 161 but the accused's lawyer refused; the Court, however, assured that the contradictions would be treated as unexplained.
This course is not sufficient to amend the prejudice caused to the accused—The right course was either to send the case for retrial or call the approver to have him cross-examined on his statement recorded under section 161. Faiz Ahmed Vs. State (1960) 12 DLR (SC) 42; 1960 PLD (SC)
S, 161—Propriety of maintaining the original statement under section 161. It is improper on the part of the prosecution to remove the original statement of the defence witness recorded under section 161 of the Code and replace it with one which is said to be a copy of the original one. Abdul Kuddus Akanda Vs. The State (1970) 22 DLR 195.
Statements recorded by police under section 161 cannot be used as substantive evidence—Use of such statements as substantive evcdencc causes failure of justice—Such statement can only be used for contradicting prosecution witnesses in the manner provided by section 145 of the Evidence Act. Prya Bala Das Vs. Ata (1970) 22 DLR 582.
—Statement recorded by Police under section 161—Court to consider such record only with a view to weighing the evidence actually adduced in court. Prya Bala Das Vs. Ata, (1970) 22 DLR 582.
Statement recorded by Police under section 161 Cr.P.C.—Where such record becomes suspect or unreliable much weight should not be given to such statement or alleged omission by prosecution witnesses—Court should exercise its discretion judicially, if in such circumstances direct evidence of witnesses should be disbelieved. Pry a Bala Das Vs. Ata (1970) 22 DLR 582.
— S- 16KThe statement recorded under section 161 is no evidence in a trial. Ekabbar AH Vs. The State (1970) 22 DLR 620.
—An omission of a fact from the statement is only of value, if it is of such importance that the witness would have almost certainly made it and the police officer would have certainly recorded it, had it been made. The practice of proving such omission of statements is generally to be discouraged. Ekabbar All Vs. The State (1970) 22 DLR 620.
—Statement under the section— Purpose for which it may be used.
Statement under section 161 is not at all evidence. The only purpose of such statement is" to contradict the prosecution witness and that also can be done only after the statement has been duly proved and the provisions of section 145 of Evidence Act has been duly complied with. Abdul Hashem Vs. State (1968) 20 DLR 834.
—Accused's right to get statements.
Accused has the right to get copies of the statements of witnesses recorded by an investigating office? under section 161 and examine them for himself to find out whether there are contradictions. It is not impossible that the defence might be able to abstract from the condensed or boiled statement portions which could be attributed to one or the other of the witness whom it intends to contradict by such statements. Sarafat Vs. Crown (1952) 4 DLR204.
—A boiled statement is really a digest or an abstract of the statement of a number of witnesses. Sarafat Vs. Crownr(1952) 4 DLR 204.
3ecs. 161 and 162 : Recording of witnesses, statement in a boiled down form is
irregular, but unless it causes prejudice to the accused, the trial stands. Md. IsrafilVs. State (1957) 9 DLR 92.
—Statements of witnesses recorded under Sec. 161 cannot be withheld from defence on the plea that they were recorded in a boiled down form. (1953) 5 DLR 313 and also see. (1957) 9 DLR (WP) 1.
—Record of joint statement of several persons—withholding the same prejudices the defence.
—Statement made to a police-officer under Sec. 161 is inadmissible in evidence and cannot be brought on record,53 CWN (DR. 1) 66.
—To allow the defence to cross-examine witnesses with reference to their boiled down statement recorded by a police-officer is not only an illegality but also causes miscarriage of justice. A.F.M. Abdul Jalil Vs. A.Sabur (1953) 5 DLR 169.
S. 162 : Contradiction brought out by defence of a tendered witness—section applicable. Defence by cross-examination brought out certain contradictions in. the evidence of a prosecution witness tendered by prosecution from what he stated to the investigating officer as recorded under section 161. The defence wanted to confront him with what he said before the Investigating Officer but the Sessions Judge disallowed it on the ground that the witness was a tendered witness.
Held : Even though the evidence consisted merely of statements in cross-examination, the defence is entitled to use the statement of the witness taken under section 16T in order to contradict the evidence of the said witnesses elicited in cross-examination. State Vs. Nowab Alt (1961) 13 DLR 646 :1963 PLD (Dae) 61.
—Investigating Officer as a defence witness—cannot be cross-examined by the prosecution. The prosecution having failed to examine the Investigating Officer as a witness for the prosecution the defence examined him as a defence witness and the Investigating Officer in his examination-in-chief made certain statements in favour of the defence whereupon the prosecution cross-examined him.
Held : The Sessions Judge ought not to have allowed the prosecution to cross-examine the Investigating Officer.
No statement made by any person to the Police Officer in the course of a case can be admitted in evidence except for the limited purpose mentioned in section 162 and that, too, at the instance of the accused. Anis Mondal Vs. State (1958) 10 DLR 459.
—The prosecution has no right whatsoever to prove the statement of the witness made to the Police Officer or the witness. Defence only has the right to cross-examine the Investigating Officer. Anis Mondal Vs. State. (1958) 10 DLR 459.
—Police diary—Use by the Court when Investigating Officer is cross-examined. Negative answers by the Investigating Officer—Public Prosecutor's duty in clearing up matter. It is desirable that when an Investigating Officer is being cross-examined as to previous statements made to him by the witness for the prosecution, the Court should have the Police diary before it and see whether the negative answer of the officer really gives a picture of what the witness, in fact had stated. If not, the fact should be borne in mind and the Court should watch whether the matter is cleared up in re-examination. It is the duty of the Public Prosecutor to see that the negative answer from an Investigating Officer in respect of the statements of a witness does not create a wrong impression of what the witness stated before the Police. He must in these cases bring about other statements to explain the matter referred to in cross-examination. If the Public Prosecutor fails to do so, it-is the duty of the Court in fairness to the cases, and the witness, to bring about facts which will clear up the negative answer. This will be legitimate use of the Police diary and one of the modes of taking aid from it in the trial. Anis Mondal Vs. State (1958) 10 DLR 459.
—Where the Investigating Officer was not examined by the Prosecution but was examined by defence, section 162 stood as a bar against the prosecution for cross-examining him as regards the statement made by the witness to the Investigating Officer. Anis Mondal Vs. State (1958) 10 DLR 459.
— Witness must be called for the prosecution. The requirement of section 162 is that the witness must be called for the Prosecution. State Vs. Nawab AH Biswas (1961) 13 DLR 646.
—Statements to the Investigating Officer cannot be used to collaborate Prosecution witnesses. Anis Mondal Vs. State (1958) 10 DLR 459.
—Effect of inadmissible evidence placed before the jury-verdict of guilty, unsafe to rely on. Investigating Officer, examined as a defence witness, made some statements in favour, of the defence. Prosecution thereupon cross-examined the Investigating Officer which the Sessions Judge allowed, but, in his charge to. the jury, he told the latter that the evidence of the Investigating Officer in cross-examination by the prosecution was inadmissible in law and asked them, not to be influenced by the same.
Held : It must be remembered that the jury are laymen and when this evidence had been placed before them it would be impossible for them to shake off the effect of those evidence in spite of the warning given by the learned Judge. The trial has certainly been vitiated by violating the provisions of section 162 Criminal Procedure Code and that jury might have been misled by those inadmissible evidence. Anis Mondal Vs. State (1958) 10 DLR 459.
—Whether a statement recorded by the police is an F.I.R. or a statement made in the course of Investigation is a question of fact. Md. Siddique Vs. Crown 6 DLR (FC) 56.
—Investigating Officer cannot be asked as to what a witness said to him.
The trial Judge is not permitted to ask the Investigating Officer as to the contents of an oral statements made to him by. a certain witness after the F.I.R. was recorded. Such a statement must be eliminated from the recofd. All Haider Vs. Stale (1958) 10 DLR SC 193.
—Dying declaration — Dying declaration made in the course of Police Investigation — admissible. Shahidulla Khan Vs. Slate (1960) 12 ®LR 537: (1961 )PLD (Dae.) 1.
—Where a chowkider arrived at the thana and reported the occurrence to an S.I. of Police who did notrccord the statement of the chowkider in writing but recorded the statement of another person, who arrived at the thana later on, as the first information report.
Held that the information given by the chowkider was the first information report in the case and the Sessions Judge was wrong in allowing [he latter statement to go to the jury. Jamshed All Vs. Crown (1953) 5 DLR 369.
—Omission to supply to accused at trial copies -of statements of witnesses recorded in Police investigation— copies supplied at the hearing of appeal. Where no copy of the approver's statement taken by the Police during investigation was supplied to the accused at (he trial and the contents of the statement were never disclosed to the accused, the irregularity may be strong point in the appeal and raise an inference of prejudice. But this inference is not irrcbuttable and where a copy is supplied to the accused in appeal and its contents are known to the Court and the accused and the counsel for the accused are unable even to suggest thit cross-examination of the witness as to ah alleged omission or contradiction might have led to a break down to the witness or a material part of his testimony, the Court cannot set aside the conviction^ inasmuch as the matter is governed by section 537 of the Code. Faiz Ahmed Vs. State (1960) 12 DLR (SC) 42 = (1960) PLD.
—Defence lawyer entitled to get copies recorded under section 162. Lawyer permitted to defend an accused is entitled to have access to the record and be supplied with copies as provided under section 162 Criminal Procedure Code. State Vs. Ain Khan (1961) 13 DLR 911.
—An omission from the record in case diary of a statement does not amount to contradiction. An omission of a statement from the record is only of value if it is of such importance that the witness would have almost certainly made it and the police-officer would have certainly recorded it, had it been there. Tera Meah Vs. Crown (1955)7 DLR 539.
—Omission of statements from the diary recorded—Practice of proving such omission, not approved : The practice of proving omissions of statements (in the police diary) are generally to be discouraged and without it being known as to whether the Investigating Officer is speaking from his memory or speaking by reference to his diary, it is difficult to say that it is a contradiction of a previous statement and much more so in the case of a statement not reco'rdcd in the dia/y. Tera Meah Vs. Crown (f955)7DLR539.
—Statement to the police : Prosecution witnesses were questioned by the defence whether they made certain statements to the police in the course of investigation and upon their saying that they did, the Investigating Officer was there-after asked as to whether particular witnesses has made particular statements to him. The latter said that in some cases a particular witness had not stated and in some cases in his diary it was not noted as such.
Held : The statements referred to above are not statements coming within the purvtew of section 161, and, therefore, they cannot be proved under section 162 to hold that contradictions have been established. Tera Meah Vs. Crown (1955)7 DLR 539.
—Making one part of a continuous statement before and the other part during investigation by police officer—Former not be covered by section 162 and the latter hit by section 162 Cr.P.G. Mir Muhammad Vs. The Slate (1969) 21 DLR (WP) 217.
—F.I.R. recorded at the place of occurrence after preliminary investigation—Inadmissible in evidence. Ali Sher Vs. State (1966) 18 DLR (WP) 112.
—The mode of contradicting a previous statement as provided in sections 145 and 153(3) of the Evidence Act has nothing to do with the mode prescribed in section 162, Cr.P.C. The credit of a witness may be impeached by proving his former statement inconsistent with any part of his evidence which is liable to be contradicted. Altaf Molla Vs. Crown (1954) 6 DLR 420.
—Previous statements recorded under section 161, Cr.P.C. cannot be proved by the Investigating Officer before the witnesses had actually taken their stand in the witness box. State Vs. Go lam Mostafa (1949) 1 DLR 71 (at page 77, left- hand column).
—Information previous to first information whereupon police action other than investigation into cognizable offence started, is admissible in evidence.
—When a witness has given details of the commission of the crime and of the persons engaged in- committing it, the act of the Police-Officer m subsequently asking the witnesses to point out those persons from a test identification parade cannot be objected to and the evidence of the result of such a test may be rightly given under sec. 9 of the Evidence Act in proof of the identity of the accused without contravening the provisions of Sec. 162 Cr.P.C. Ibrahim Bhak Vs. Crown (1955) 7 DLR (FC) 123 (atp.136. left hand col).
—Identification parade : Held before police—Evidence as to, inadmissible. 5 PLD (Sind) 279.
•—Test identification : Act of identifying in a test identification parade is not a statement hit by section 162 and is admissible in evidence. Bashir Harm Vs. State, 1 DLR (SC) 21.
—Identification of articles before an identifying police-officer is hit by Sec. 162. Evidence of such identification is of no value'. Mir AmirHossain Vs. Crown. (1954) 6 DLR 518.\
—List of stolen property given to the police in the course of investigation—Inadmissible and must be excluded from consideration. Md. Yakub Vs. Crown (1955) 7 DLR (WP) 36.
— Admissibility of evidence of the | pointing out by approver of the place where some incidents took place. The relevant point was whether the pointing out of the place by the approver to the police-officer in the course of investigation where the offence was alleged to have been committed was hit by section 162.
Held : In such a case the provisions of the section are not contravened because what was used at the trial was not a statement made to the police but merely the fact that the witness demonstrated to the police his knowledge of certain localities. Ibrahim BhakVs. Crown (1955) 7 DLR (FC) 123 (133).
— What does not amount to a statement to the police. Where what is at issue at the trial is not a statement to the police by a witness but merely the fact that the witness demonstrated to the police his knowledge of certain localities where some incidents are alleged or proved to have taken place, Sec. 162 of the Code is not contravened by the admission of such evidence. Ibrahim Bhak Vs. Crown (1955) 7 DLR (FC) W (136).
—Statement in the course of investigation. Although in examination-in-chief the prosecution witness stated that he had mentioned the fact of his recognition to the Sub-Inspector of Police but in cross-examination he said that he mentioned the names of the accused persons to the Sub-Inspector of Police.
Held : This statement is hit by sec. 162, and should never have been allowed to go on record. Syed Ahmed Vs. Crown (1950) 2 DLR 244.
—Steps in " furtherance of investigation : In the context in which the word occurs, investigation must refer to the investigation of the specific allegation of crime already reported and the sections can apply only to those statements which are steps in furtherance of the pending investigation. Shahamad Vs. State (1956) 8 DLR (SC) 124.
—The mere fact that a statement was made during investigation is not by itself sufficient to bring it under section 162. The question whether a statement was in the course of an investigation or not is a question of fact to be decided on the circumstances of each case. Shahamad Vs. State (1956) 8 DLR (SC) 124.
—F.I.R. after the police investigation had ; started, being a statement of a person before the police, was not admissible in evidence. Golam Qadir Vs. Crown 2 P.C.R. 17;2 PLD (Lah.) 366.
—Statements to custom officers :
Customs officials are not police-officers and statements made to them arc not covered by section 162. Ayoob Vs. Crown 2 PCR 60.
—Statement made by an accused before a police-officer during investigation—inadmissible. 2 PLD (Lah.) 364.
—Prosecution witness called in defence does not cease to be a witness called for the prosecution—Copy of such a witness's statement before the police should be supplied to the defence. In case of refusal of copy of such statement on what the witness was sought to be contradicted, his evidence should be kept out of consideration. 1954 PLD (Lah.) 210.
—A police officer while he is investigating the truth or otherwise of an information received he is certainly carrying on an investigation under Chapter XIV of the Cr.P.C. and any statement made by persons examined by him will be hit by sec. 162 of CrP.C. JamshedAli Vs. Crown (1953) 5 DLR 369.
—The summary trial should of course be speedy, but it does not dispense with the legal provisions for engaging a lawyer by the accused. As the record shows the accused hardly got any opportunity to be defended by a lawyer. It was contended on behalf of the State that the defence did not suggest any case of placing of the gun in their ring-well. It must be considered that the accused were hardly given any opportunity to arrange their legal defence. In between the dates of their arrest and trial only 3 days elapsed. It is not understood why their trial was held in such a haste. Pair Baksha Vs. Stale (1975) 27 DLR 251.
—Statements made u/s. 162—How far and to what extent can be used in a criminal trial. We are concerned, at the moment, with the first proviso to section 162 Cr.P.C. It is clear from the aforequoted first proviso :
(I) That statements made to the Investigation Officer cannot be used by the prosecution to corroborate or contradict the statements of its own witness, It is true that section 157 of the Evidence Act provides that in order to corroborate testimony of a witness any former statement made by such witness relating to the same fact is admissible in evidence, but this general rule is controlled by the first proviso to section 162 Cr.P.C. Ansar AH Vs. State (1983) 35 DLR 303.
Sections- 162 & 164—Statements made by accused to Magistrate holding "trap"—admissible at a trial—Such statement not hit by sees. 162 or 164. 9PLD(Lah.)25i.
—Ss. 162 and 164—For guidance in recording confession or statement under S.I64 of the Code of Criminal Procedure that prayer for remand to police custody should not be granted when a prisoner has failed to make any confession. State Vs. Lalu Mia (1987) 39 DLR (AD) 117
—S. 164— A statement made under section 164 can never be used as substantive evidence of the facts stated, but it can be used to support or challenge the evidence given in Court by the person who made the statement. (1950) 2 DLR (PC) 39.
—Statements under section 164 come under section 24 of the Evidence Act and are, therefore, excluded from evidence. (1956) 8 DLR (FC) 1.
—The word "statement" in section 339(2) Criminal Procedure Code, refers to either the statement of the approver before the committing Magistrate or his statement at the trial, or to both. They do not include statements under section 164 made by the approver in the course of the investigation. (7956; 8 DLR (F.C.) 1.
—Statement made under section 164, Cr.P.C. is relevant against the maker thereof when they are recorded in compliance with the provisions of section 364 Cr.P.C. (1956) 8 DLR (F.C.) 1.
Recording Magistrate not called as a witness-—Confession admitted in evidence without being proved by the Magistrate who recorded it— Circumstances to put the confession in evidence under section 33, Evidence Act, not proved.
Held : The confession is not admissible. (1951) 3 DLR 383.
—The provisions of section J64 do not in any way affect the admissibility of a statement made by a person, if it falls within section 32 of the Evidence Act. (1951) 3 DLR (FC) 388.
—The word "statement" in section 164(1) includes statements of witnesses or deceased persons and must conform to the provisions of Chap. XXV, Cr.P.C., if it is intended to be used as statements made during investigation under Chap. XIV of the Code. (1951) 3 DLR (F.C,) 388.
_—Section 24 of the Evidence Act applies to statements made by an approver under section 164 and operates to exclude such statements from evidence. (1955) 7 DLR (FC) 123 (129).
—A confession which may be true but not voluntary is not admissible in evidence at all. (1955) 7DLR 633 (636)(rt.hand col.).
—The Magistrate acting under section 164 has, as required by section 364, also to make a memorandum of the confession in his own hand in the language of the Court and to sign and annex it to the record if he does not record the confession himself. If he is unable to make a memorandum, he must state the reason of his inability.(1951) 3 DLR (WPC) 505.
—Confession recorded in narrative form and not in questions and answers— Confessions under section 164 taken down in a narrative form do not render them inadmissible in evidence 'on the plea that they ought to have been recorded in the form of questions and answers.(1951) 3 DLR (WPC) 505.
—A statement under section 164 cannot be used as substantive evidence; it can be used in cross-examining the maker thereof only to show that it was false. (1956) 8 DLR 404 (407).
—A statement under section 164 can properly •be used to enable the jury to decide whether the evidence put in under section 288, Cr.P.C. or the evidence in the sections is to be preferred. (1956)8 DLR 404.
—Previous statements made under section 164 can be used for the purpose of corroborating or contradicting the subsequent statements made in the committing Court or.in'the Court of Session. (1954) 6 DLR (WPC) 188.
Value of statement—A person whose statement is recorded is more or less wedded lo the same. Deposition ef a witness whose statement was recorded under section 164 cannot be doubted simply on the ground that section 164 was resorted lo, (1954) 6 DLR (WPC) 213.
—Confession while the accused in I custody—Accused during the period between his' arrest and his confession remaining in Police I custody for a fortnight.—Confession inadmissible. Haji Year Muhammad Vs. Rahim Dino (1961) U DLR (WP) 58 : (1960) PLD (Kar.) 769.
—Section 25 of the Evidence Act has nothing to do with the confession of an approver recorded > under section 164 before a pardon is tendered to him, ' because the confession is not the statement of a | person who is being tried as an accused when the confession is tendered in evidence. (7955) 7 DLR \ (FC) 123 (129).
_—Confession by an accused before I the commencement of investigation, | Confession by an accused before the commencement oT investigation is admissible in evidence though, such confession does not fall within the provisions of section 164 and though the prescribed formalities are not observed. Abul Hossain Vs. State (I960) 12 DLR 110;( 1960) PLD 438.
—If no pardon has been tendered when the approver makes his statement under section 164, the statement can only be recorded as a confession subject to the restrictions of that section, but where such pardon has been previously tendered and accepted, the statement has to be recorded as that of a witness the former being without and the latter being on oath. (1955) 7 DLR (FC) 123/129.
—Satisfaction of the Magistrate that the confession was voluntary.—Putting only of questions prescribed in the printed form—not enough. (1955) 7 DLR (WPC) 45 (53).
—Magistrate who recorded the statement of witness which is not a substantive evidence and can only be used for corroborating or contradicting may not be called as a witness to prove the statement. Anwar Hossain Vs. Prov. ofE.Pak. (I960) 12 DLR 615.
—In order to ensure the voluntariness of a confession, the questioning of the accused before he makes the cbnfcssion forms an essential factor. The Magistrate must question the accused in pursuance of a real endeavour to find out the object of it.
When there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the Court must accept or reject the confession as a whole. (19J7) 9 DLR 46.
— In course of the investigation' means investigation which is in progress and a statement under this section may be recorded not only at the instance of the police but also at the instance of the accused or the aggrieved person or at the request of the witness himself. (1953) 5 PLD (Lah.) 495.
—After the recording of confession the accused person should be sent to the judicial custody and not to the police custody. Wazir Vs. State (1961) 13 DLR WP 5: (1960) PLD (Kar.) 674.
—A statement recorded by an incompetent Magistrate is admissible. 5 PLD (Lahore) 495.
—When a person is made an approver, his statement has clearly resulted from an inducement but, when such a person is a witness, section 24 of, the Evidence Act can have no application, as his statement is not being used as a confession but as a piece of evidence against persons other than himself. Nor would such a statement be inadmissible on the ground that it was not recorded in terms of section 164(3), Crf.C. (1955) 7 PLD (Lah.) 375.
—Statements made under section 164 is relevant against the maker (accused) thereof when they are recorded in compliance with the provisions of section 364. (7950; 2 PLD (Lah.) 364.
Non-compliance with the provision —
Where the Magistrate recording the confession had failed to follow the requirements of law as set out in sections 164 and 364,Cr.P.C. but had subsequently ' been examined as a witness under the provisions of section 533, Cr.P.C.
Held : The evidence of the Magistrate cured the irregularities and that the confession was not inadmissible in evidence. 2 PLD (Bal.) 1.
Admissibility—Confession is inadmissible in evidence unless the Magistrate is found to have made real and substantial inquiries which he was bound to do as to its voluntary nature before recording it. 2 PLD (Lah.) 68.
—Confession before Magistrate—No
formalities of law observed-—confession is not admissible in evidence. 2 PLD (B.J.) S.
—Warning to the confessing accused-Warning to the confessing accused must be given before commencing the recording of the confession. Magistrate must be satisfied that confession is voluntary and record of the confession must indicate that the confession was voluntary. Said Begum Vs. State (1959) 11 DLR (WP) 22 : (1958) PLD (Lah.) 559.
—It is not necessary that warning to the confessing accused should be given "immediately" before recording the confession. —Warning need be given afresh when continuity of recording the confession is broken. (AIR 1946 Pat. 169; AIR.
7925 Cal. 587 and AIR 1954 Bom. 285 distinguished. AIR 1933 Mad. 74 and AIR 1930 Sind305 refJSheru Vs. State (1959) 11 DLR (WP) 28.
—Confessional statement, oral as well as in writing made by the accused before a Magistrate to whom the accused came voluntarily and who was then put under arrest—Magistrate's evidence to prove accused's confession.
Held : The. accused's statement admitted into evidence in the present case, though of a confessional nature was not hit by the rule laid down by the Judicial Committee in the case otNazir Ahmed Vs. King Emperor. The Magistrate concerned was empowered under section 190(l)(c) of the Criminal Procedure Code to act upon the information furnished and, as such, the information upon which he acted was admissible. Apart from this it cannot be said that the rule laid down in the above mentioned case excludes all confessional statements or admissions. Faqira Vs. State (1966) 18 DLR (SC) 283.
—Confession, its test : A statement is confession, if it be of such a nature that it alone can be the basis of conviction—A statement containing self-exculpatory matter is never a confession—The accused in their statements admitted their presence at the murder but did not directly admit their guilt in terms of the offence.
Held : Such judicial statements cannot be treated as confessional statements. The State Vs. Badiuzzaman, (1973) 25 DLR 41.
—Judicial statement : Incriminating portions of the judicial statement were corroborated by other evidence on record—Admission of presence by the accused persons on the scene of murder—The very admission of presence on the scene indicates that the accused had complicity in the crime and the murder took place in furtherance of their common intention. The State Vs. Badiuzzaman, (1973) 25 DLR 41.
—Confession, its meaning : Confession means admission of the guilty in terms of the offence—Confession must either admit in terms the offence or at any rate substantially all the facts which constitute the offence. The State Vs. Badiuzzaman, (1973) 25 DLR 41.
—Judicial confession : Magistrate recording confessional statement did not tell the accused that he would not be sent back to police custody—Record shows that the accused made the judicial statement after orders for sending him to judicial custody had been passed within his knowledge—Held : Judicial confession, under the circumstances, was voluntary and true. State Vs. Lulfor Fakir, (1972) 24 DLR 217.
—No statutory obligation that the confessing accused shall be given 3 hours;time to reflect before his confession is taken down. Hari Pad Debnath Vs. Slate, (1967) 19 DLR, (Dae.) 573.
—In a trap case confession of the accused before a Magistrate supervising the trap is a judicial confession and such confession must be recorded under sections 164 and 364—failure of which renders it inadmissible. Gulam Abbas Vs. The State, (1968) 20 DLR (WP) 48.
—Confessional statement may be accepted if it is made after long detention in the police custody and even if some formalities of confessional statements found are omitted. Confessing prisoner in police custody for more than 24 hours-Confession admissible unless other vitiating elements are present. Niab Ali Vs. The State, (1969) 21 DLR 122.
—Investigation about the offence of receipt of bribe money does not commence when the demand for bribe was made—Statement by an accused person in a trap case under the Anti-Corruption Act to a Magistrate or a Police Officer is admissible in evidence and not being one in the course of investigation is not as such hit by section 164 or section 364, Cr.P. Code.
Provision of Pakistan Special Police Establishment Ordinance (VIII of 1948) and that of West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961) are inconsistent with what has been provided in Chapter XIV, Cr.P. Code regarding information to the Police and the matter of investigation and to* the extent of inconsistency, the former prevails over the Chapter XIV of the Cr.P. Code.
Section 2 of the Pakistan Special Police Establishment Ordinance (VIII of 1948) (as well as the West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961) read with instructions which have the force of law issued to the Special Police Establishment by,the Central Government in 1953 are inconsistent with and in derogation of the provisions of sections 154, 156,157 and 173 Cr.P.C. and to the extent of inconsistency override the group of sections in Chapter XIV on which the majority views of the Full Bench referred to above are based. Mohammad Sarwar Vs. The State (1969) 21 DLR (SC) 182.
—The rules framed by the West Pakistan Government under West Pakistan Anti-Corruption Ordinance (XX of 1961) make a departure from the Provisions of Chapter XIV of the Cr.P.C. and envisage a preliminary enquiry to test the genuineness of complaint against a Government servant which includes trap evidence. Mohammad Sarwar Vs. The State (SC) (1969) 21 DLR (SC) 182.
—The admissibility of the statement of an accused made before a Magistrate and recorded by him after the recovery of the tainted money from the accused person would depend on whether that statement was made during the investigation of the crime for which he is prosecuted or for a crime which was not under investigation at that time. If it is made in the course of the investigation of the crime, it should follow the requirements of section 164 of the Code but if it is not in the course of the investigation, it need not do so.
If a confession is recorded without the observance of the formalities of section 164 it need not to be ruled out completely on that score. There is the curative provision of section 533 of the Code allowing aliunde evidence to be taken of such a confessional statement having been made, making it admissible if the error of non-compliance with the provisions of sections 164 and 364 of the Code has not injured the accused as to his defence on merits. Ghulam Abbas vs; The State (1968) 20 DLR(WP)48.
—Warning to be given to the accused—Nature of warning which is held sufficient. Time given to the accused for reflection before confession—No hard and fast rule can be laid down. There is no rule of law which gives precisely the time that the Magistrate must allow for such purpose. This matter as to give time is entirely in the discretion of the Magistrate who must determine what reasonable time in the facts and circumstances of each case he finds it desirable to give for such reflection. State Vs. Jatindra Kumar Sutradhar (1969) 20 DLR 526.
—Statement recorded u/s 164 deposed as being made under coercion—cannot be used as substantive evidence. Statement recorded u/s 164 can be used for contradicting under sections 145 and 155 of the Evidence Act or for corroborating u/s 157. Ismail Sarker Vs. State (1981) 33 DLR 320.
—A confession recorded by a Magistrate in compliance with the provisions of sections 164 &' 364 Cr.P.Code shall be presumed that all the ingredients of S.80, Evidence Act fulfilled.
When the confession has been recorded in accordance with law by observing all the formalities prescribed by law (i.e. by obs'erving all the formalities prescribed by Ss. 164 and 364 Cr.P.C.) and the said confession duly taken is tendered in the Sessions Court, it proves itself under section 80 of the Evidence Act without calling the Magistrate who recorded it. Emran All Vs. State (198$) 37 DLR 1.
—Statements under section 164 can not be used as a substantive evidence—Can be used for contradicting or corroborating a maker thereof. Khashru alias Khorshed Vs. The Slate (1983) 35 DLR 119.
—Statement recorded B/s.464 Cr.P.C. cannot be treated as substantive evidence of the facts stated therein. Such statements recorded by a competent Magistrate u/s. 164 Cr.P.C. can only be used for contradicting the maker of it u/ss.l45 and 155 of the Evidence Act or for the purpose of corroborating former prevails over the Chapter XIV of the Ct.P. Code.
Section 2 of the Pakistan Special Police Establishment Ordinance (VIII of 1948) (as well as the West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961) read with instructions which have the force of law issued to the Special Police Establishment by the Central Government in 1953 are inconsistent with and in derogation of the provisions of sections 154, 156,157 and 173 Cr.P.C. and to the extent of inconsistency override the group of sections in Chapter XIV on which the majority views of the Full Bench referred to above are based. Mohammad Sarwar Vs. The State (1969) 21 DLR (SC) 182.
—The rules framed by the West Pakistan Government under West Pakistan Anti-Corruption Ordinance (XX of 1961) make a departure from the Provisions of Chapter XIV of the Cr.P.C. and envisage a preliminary enquiry to test the genuineness of complaint against a Government servant which includes trap evidence. Mohammad Sarwar Vs. The State (SC) (1969) 21 DLR (SC) 182.
—The admissibility of the statement of an accused made before a Magistrate and recorded by him after the recovery of the tainted money from the accused person would depend on whether that statement was made during the investigation of the crime for which he is prosecuted or for a crime which was not under investigation at that time. If it is made in the course of the investigation of the crime, it should follow the requirements of section 164 of the Code but if it is not in the course of the investigation, it need not do so.
If a confession is recorded without the observance of the formalities of section 164 it need not to be ruled out completely on that score. There is the curative provision of section 533 of the Code allowing aliunde evidence to be taken of such a confessional statement having been made, making it admissible if the error of non-compliance with the provisions of sections 164 and 364 of the Code has not injured the accused as to his defence on merits. Ghulam Abbas vs. The State (1968) 20 DLR(WP)4
—Warning to be given to the accused—Nature of warning which is held sufficient. Time given to the accused for reflection before confession—No hard and fast rule can be laid down. There is no rule of law which gives precisely the time that the Magistrate must allow for such purpose.
This matter as to give time is entirely in the discretion of the Magistrate who must determine what reasonable time in the facts and circumstances of each case he finds it desirable to give for such reflection. State Vs. Jatindra Kumar Sutradhar (196&) 20 DLR 526.
—Statement recorded u/s 164 deposed as being made under coercion—cannot be used as substantive evidence. Statement recorded u/s 164 can be used for contradicting under sections 145 and 155 of the Evidence Act or for corroborating u/s 157. Ismail Sarker Vs. State (1981) 33 DLR 320.
—A confession recorded by a Magistrate in compliance with the provisions of sections 164 &' 364 Cr.P.Code shall be presumed that all the ingredients of S.80, Evidence Act fulfilled. When the confession has been recorded in accordance with law by observing all the formalities prescribed by law (i.e. by observing all the formalities prescribed by Ss. 164 and 364 Cr.P.C.) and the said confession duly taken is tendered in the Sessions Court, it proves itself under section 80 of the Evidence Act without calling the Magistrate who recorded it. Emran AH Vs. State (1985) 37 DLR 1.
—Statements under section 164 can not be used as a substantive evidence—Can be used for contradicting or corroborating a maker thereof. Khashru alias Khorshed Vs. The State (1983) 35 DLR 119.
—Statement recorded 8^8.164 Cr.P.C. cannot be treated as substantive evidence of the facts stated therein. Such statements recorded by a competent Magistrate u/s. 164 Cr.P.C. can only be used for contradicting the maker of it u/se.145 and 155 of the Evidence Act or for the purpose of corroborating him u/s. 157 of the Evidence Act. Khashru alias Khorshed Vs. The State (1983) 35 DLR 119.